Calendar No. 127
110th Congress Report
SENATE
1st Session 110-59
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OPEN GOVERNMENT ACT OF 2007
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April 30, 2007.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 849]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 849), 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, report favorably
thereon without amendments, and recommends that the bill,
without amendment, do pass.
CONTENTS
Page
I. Purpose of the Openness Promotes Effectiveness in our National
Government Act (``OPEN Government'') of 2007.....................1
II. History of the Bill and Committee Consideration..................5
III. Section-by-Section Summary of the Bill...........................6
IV. Cost Estimate....................................................8
V. Regulatory Impact Evaluation....................................12
VI. Conclusion......................................................12
VII. Additional Views................................................13
VIII.Changes in Existing Law Made by the Bill as Reported............28
I. PURPOSE OF THE OPEN GOVERNMENT ACT
A. Summary
Chairman Patrick Leahy and Senator John Cornyn introduced
the Openness Promotes Effectiveness in our National Government
Act (``OPEN Government'') of 2007 on March 13, 2007. This
legislation is cosponsored by Senators Specter, Kerry,
Feingold, Isakson, Cardin and Brown. This bipartisan
legislation promotes and enhances public disclosure of
government information pursuant to the Freedom of Information
Act (``FOIA''). The legislation will strengthen FOIA by, (1)
helping Americans to obtain timely responses to their FOIA
requests, (2) improving transparency in the federal
government's FOIA process, (3) providing an alternative to
costly litigation for FOIA requesters and the government, and
(4) promoting accountability for agency decisions to withhold
information under FOIA.
B. Background and Need for Legislation
1. Background
With the enactment of FOIA, 5 U.S.C. Sec. 552, et seq., in
1966, the Federal Government established a policy of openness
toward information within its control. The FOIA establishes a
presumptive right for the public to obtain identifiable,
existing records of federal agencies. Any member of the public
may use FOIA to request access to government information, and
FOIA requesters do not have to show a need or reason for
seeking information.
When responding to FOIA requests, the burden of proof for
withholding requested information rests with the federal
department or agency seeking to deny the requests. Pursuant to
FOIA, federal agencies may only withhold documents, or portions
of documents, sought under FOIA if they fall within one or more
of nine categories of exemptions established by the statute.
The exemptions under FOIA allow federal agencies to withhold,
among other things, information that relates solely to an
agency's internal personnel rules and practices; internal
government deliberative communications about a decision before
an announcement; information about an individual that, if
disclosed, would cause an unwarranted invasion of personal
privacy; and law enforcement records, particularly with regard
to ongoing investigations.
The enforcement of FOIA has been affected by memoranda
issued by the Department of Justice. Under the Clinton
Administration, Attorney General Janet Reno instructed agencies
to make discretionary disclosures to FOIA requesters, and to
withhold records only if a foreseeable harm existed from that
release \1\ In 2001, the Bush Administration reversed this
policy with a memorandum from Attorney General John Ashcroft
that encouraged agencies to limit discretionary disclosures of
information, calling on them to exercise ``full and deliberate
consideration of the institutional, commercial, and personal
privacy interests that could be implicated by disclosure of the
information.'' Similarly, the memo stated that the Department
of Justice would defend decisions to withhold information from
requesters unless those decisions ``lack a sound legal basis.''
\2\ In addition, on December 14, 2005, President Bush issued
Executive Order No. 13392 on Improving Agency Disclosure of
Information under FOIA.
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\1\ Janet Reno, Attorney General, Memorandum for Heads of
Departments and Agencies, Subject: The Freedom of Information Act (Oct.
4, 1993).
\2\ John Ashcroft, Attorney General, Memorandum for Heads of All
Federal Departments and Agencies, Subject: The Freedom of Information
Act (Oct. 12, 2001).
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2. Need For Legislation
Now in its fourth decade, the Freedom of Information Act
remains an indispensable tool in shedding light on bad policies
and government abuses. But, today, FOIA also faces challenges
like never before. During the past six years, lax FOIA
enforcement has undermined FOIA and eroded the public's right
to know. As a result, there is an urgent need to update and
strengthen FOIA.
Chief among the problems with FOIA are the major delays
encountered by FOIA requestors. According to a report by the
National Security Archive, an independent non-governmental
research institute, the oldest outstanding FOIA requests date
back to 1989--before the collapse of the Soviet Union. And,
while the number of FOIA requests submitted each year continues
to rise, our federal agencies remain unable--or unwilling--to
keep up with the demand. Recently, the Government
Accountability Office found that federal agencies had 43
percent more FOIA requests pending and outstanding in 2006,
than they had in 2002.
Although the Bush Administration has taken some helpful
first steps to address the growing problem with FOIA delays,
the President's Executive Order on FOIA, E.O. 13392 has not
done enough to correct lax FOIA enforcement by federal
agencies. More than a year after the President's directive to
government agencies to improve their FOIA services, Americans
who seek information under FOIA remain less likely to obtain
it. For example, a recent study by the Coalition of Journalists
for Open Government found that the percentage of FOIA
requestors who obtained at least some of the information that
they requested from the government fell by 31 percent last
year. These and other shortcomings with the current FOIA policy
demonstrate that the Congress must play an important role in
preserving and strengthening FOIA.
3. The OPEN Government Act
This bipartisan bill contains commonsense reforms to update
and strengthen FOIA. The OPEN Government Act addresses concerns
with lax FOIA enforcement and compliance by helping Americans
obtain timely responses to their FOIA requests and providing
government officials with the tools that they need to ensure
that our government remains open and accessible. Specifically,
S. 849 addresses the growing backlog of FOIA requests and
restores meaningful deadlines for agency action, by ensuring
that the 20-day statutory clock runs immediately upon an
agency's receipt of a request and by imposing consequences on
federal agencies for missing the deadline. The bill also
establishes a FOIA hotline service for all federal agencies,
either by telephone or on the Internet, to enable requestors to
track the status of their FOIA requests.
To address concerns about the growing costs of FOIA
litigation, the bill also contains an ombudsman provision that
creates an Office of Government Information Services within the
Administrative Conference of the United States, which would
review agency FOIA compliance and offer mediation services for
FOIA requestors. The bill also clarifies that FOIA applies to
agency records that are held by outside private contractors, no
matter where these records are located.
The bill also addresses a relatively new concern that,
under current law, federal agencies have an incentive to delay
compliance with FOIA requests until just before a court
decision that is favorable to a FOIA requestor. The Supreme
Court's decision in Buckhannon Board and Care Home, Inc. v.
West Virginia Dep't of Health and Human Resources, 532 U.S. 598
(2001), eliminated the ``catalyst theory'' for attorneys'' fees
recovery under certain federal civil rights laws. When applied
to FOIA cases, Buckhannon precludes FOIA requesters from ever
being eligible to recover attorneys fees under circumstances
where an agency provides the records requested in the
litigation just prior to a court decision that would have been
favorable to the FOIA requestor. The bill clarifies that
Buckhannon does not apply to FOIA cases.\3\
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\3\ In the additional views filed by Senator Kyl, he questions
whether reversing Buckhannon is good policy. As a policy matter,
Buckhannon raises serious and special concerns within the FOIA context.
Under Buckhannon, it is now theoretically possible for an obstinate
government agency to substantially deter many legitimate and
meritorious FOIA requests. Here's how: A government agency refuses to
disclose documents even though they are clearly subject to FOIA. The
FOIA requestor has no choice but to undertake the time and expense of
hiring an attorney to file suit to compel FOIA disclosure. Some time
after the suit is filed, the government agency eventually decides to
disclose the documents--thereby rendering the lawsuit moot. By doing
so, the agency can cite Buckhannon for the proposition that, because
there is no court-ordered judgment favoring the requestor, the
requestor is not entitled to recover attorneys' fees. This
straightforward application of the Buckhannon ruling effectively taxes
all potential FOIA requestors. As a result, many attorneys could stop
taking on FOIA clients--and many FOIA requestors could stop making even
legitimate and public-minded FOIA requests--rather than pay what one
might call the ``Buckhannon tax.'' The ``Buckhannon tax'' is not
theoretical; it is a reality to FOIA requestors and litigators. In
recent years, oversight hearings in both the House and Senate have
exposed the reality of government stonewalling in FOIA cases. See
Hearing before the Senate Committee on the Judiciary on ``Open
Government: Reinvigorating the Freedom of Information Act'' Wednesday,
March 14, 2007; House Government Reform Subcommittee on Government
Management, Finance, and Accountability ``Information Policy in the
21st Century: A Review of the Freedom of Information Act'' Wednesday,
May 11, 2005 (discussing cases and examples where the government
abandoned dubious legal positions with respect to exemptions and
withholding of documents after unreasonable delay and often on the eve
of trial).
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Finally, the bill enhances the agency reporting
requirements under FOIA to ensure that federal agencies provide
the information needed to understand FOIA delays and the bill
also improves personnel policies for FOIA officials to enhance
agency FOIA performance.
The OPEN Government Act is supported by more than 25
different organizations ranging from journalists to librarians
to public interest organizations, including, 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.
II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION
A. Hearings
1. March 15, 2005
On March 15, 2005, the Subcommittee on Terrorism,
Technology and Homeland Security held a hearing entitled,
``Expanding Openness in Government and Freedom of
Information.'' This hearing focused on three FOIA bills
introduced during the 109th Congress, including an earlier
version of the OPEN Government Act, S. 394,\4\ which Chairman
Leahy and Senator Cornyn had introduced on February 16, 2005.
During the hearing, witnesses from the FOIA requestor community
and media, including Katherine M. ``Missy'' Cary, Assistant
Attorney General of Texas and Chief, Open Records Division,
Walter Mears, former Washington bureau chief and executive
editor, Associated Press, Mark Tapscott, Director, Center for
Media and Public Policy, The Heritage Foundation, Meredith
Fuchs, General Counsel, National Security Archive, Thomas
Susman, a longtime practicing FOIA lawyer, and Lisa Graves, a
representative of the ACLU, discussed the need to reform FOIA
and for Congress to enact the FOIA reforms contained in the
OPEN Government Act.
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\4\ Senators Leahy and Cornyn introduced essentially identical FOIA
reform legislation, S. 394, on February 16, 2005. The Judiciary
Committee favorable reported that legislation on September 21, 2006.
However the full Senate did not consider the measure before the 109th
Congress adjourned.
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2. March 14, 2007
On March 14, 2007, the full Judiciary Committee held a
hearing on ``Open Government: Reinvigorating the Freedom of
Information Act,'' which examined the OPEN Government Act of
2007, S. 849, and other efforts to reinvigorate FOIA. The
hearing also examined a new report by the National Security
Archive which found that federal agencies are not complying
with the Electronic Freedom of Information Act (``E-FOIA'')
amendments of 1996. During this hearing, witnesses from the
FOIA requestor community and media representatives, including,
Meredith Fuchs, Katherine M. Carey, Sabina Haskell, Editor,
Brattleboro Reformer, and Tom Curley, President and CEO of the
Associated Press, Representing the Sunshine in Government
Initiative, testified about the continuing need for Congress to
enact FOIA reform legislation and endorsed the FOIA reforms
contained in the OPEN Government Act.
B. Legislative History
Senators Leahy and Cornyn introduced the OPEN Government
Act, S. 849, on March 13, 2007. After the Committee hearing on
this bill, the bill was considered by the Committee on April
13, 2007. During that consideration, Senator Kyl noted some
concerns and filed amendments. However, he agreed to proceed to
report the bill without amendment, subject to additional
negotiations with the bill's chief sponsors. The Committee
agreed by unanimous consent to report the bill favorably to the
Senate.
III. SECTION-BY-SECTION SUMMARY OF THE BILL
Sec. 1. Short title
OPEN Government Act of 2007.
Sec. 2. Findings
The findings reiterate the intent of Congress upon enacting
the Freedom of Information Act (FOIA), 5 U.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 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.
Requestors have raised concerns that the holding in Buckhannon
could be extended to FOIA cases. This section clarifies that
Buckhannon's holding does not and should not apply to FOIA
litigation.
Sec. 5. Disciplinary actions for arbitrary and capricious rejections of
requests
The 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
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, and requires
additional breakdowns depending on the length of delay. 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 Information 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.
IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
Summary: S. 849 would make several amendments to the
Freedom of Information Act (FOIA), which generally allows any
person the right to obtain federal agency records protected
from disclosure. Specifically, the legislation would:
Expand FOIA's definition of the news media;
Require time limits for agencies to act upon
FOIA requests;
Allow greater recovery of attorneys' fees
and litigation costs by FOIA requestors if information
is withheld by the government;
Require agencies to provide tracking numbers
for FOIA requests and status information;
Amend the types of information that are
exempt from disclosure under FOIA;
Require federal agencies to prepare
additional reports to the Congress concerning FOIA
activities;
Require new reports concerning agencies'
FOIA programs from the Government Accountability Office
(GAO), the Department of Justice (DOJ), the Office of
the Special Counsel (OSC), and the Office of Personnel
Management (OPM); and
Establish an Office of Government
Information Services (OGIS) to review FOIA policies and
procedures, conduct audits, and offer mediation
services.
CBO estimates that enacting this legislation would increase
direct spending by $6 million in 2008 and $63 million over the
2008-2017 period to reimburse citizens making FOIA requests for
attorney's fees and litigation cost payments. CBO also
estimates that enacting S. 849 would result in a loss of
certain fees that are recorded in the budget as revenues, for a
cost of less than $500,000 annually over the 2008-2017 period.
In addition, we estimate that implementing the bill would
increase costs subject to appropriation by $9 million in 2008
and $57 million over the 2008-2012 period to establish the OGIS
and implement new agency reporting requirements. S. 849 would
codify and expand Executive Order 13392 that requires agencies
to improve their FOIA operations, including improving
efficiency and customer services.
S. 849 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the federal government: The estimated
budgetary impact of S. 849 is shown in the following table. The
costs of this legislation fall within budget function 800
(general government) and all other budget functions that
include federal salaries and expenses.
Basis of estimate: For this estimate, CBO assumes that S.
849 will be enacted before the start of 2008, that the
necessary funds will be provided for each year, and that
spending will follow historical patterns for similar programs.
Enacted in 1966, FOIA was designed to enable any person--
individual or corporate, regardless of citizenship status--to
request, without explanation or justification, access to
existing, identifiable, and unpublished executive branch
records on any topic. The Office of Management and Budget
issues guidelines to agencies on fees to charge for providing
copies of information requested, while DOJ oversees agency
compliance with FOIA. Based on information from GAO for fiscal
year 2005, federal agencies (excluding the Social Security
Administration) received more than 2.5 million FOIA requests.
In addition, DOJ reports that in fiscal year 2005, agencies
devoted about 5,000 employee-years to processing and litigating
FOIA requests at a cost of over $300 million.
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By fiscal year, in millions of dollars--
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2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
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CHANGES IN DIRECT SPENDING
Attorneys' Fees and Litigation
Costs:
Estimated Budget Authority.. 6 6 6 6 7 7 7 7 7 7
Estimated Outlays........... 6 6 6 6 6 6 6 7 7 7
CHANGES IN REVENUES
FOIA Fees:
Estimated Revenues.......... * * * * * * * * * *
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Office of Government Information
Services:
Estimated Authorization 3 6 6 7 7 7 7 8 8 8
Level......................
Estimated Outlays........... 3 5 6 6 7 7 7 8 8 8
FOIA Reporting Requirements:
Estimated Authorization 4 5 5 5 6 6 6 6 6 7
Level......................
Estimated Outlays........... 3 5 5 5 6 6 6 6 6 7
Other Reports:
Estimated Authorization 3 2 1 * * * * * * *
Level......................
Estimated Outlays........... 3 2 1 * * * * * * *
Total Changes:
Estimated Authorization 10 13 12 12 13 13 13 14 14 15
Level......................
Estimated Outlays........... 9 12 12 11 13 13 13 14 14 15
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NOTE: * = revenue loss or spending increase of less than $500,000.
Direct spending and revenues
Attorneys' Fees and Litigation Costs. Under section 4, FOIA
requestors would be entitled to recover any attorneys' fees and
litigation costs incurred to receive requested information
through a judicial or administrative order or because of a
voluntary change in an agency's FOIA policies. Those payments
would be made from the Judgment Fund (a permanent, indefinite
appropriation for claims and judgments against the United
States). The cost of implementing this section would depend on
the number of successful challenges to FOIA requests that are
either fully or partially denied and any changes in FOIA
disclosure policies.
Under current law, when a FOIA request is denied or
partially granted, the requestor can administratively appeal
the decision. If the administrative appeal is also denied, a
requestor has the right to appeal the decision in federal
court. Based on a review of FOIA decisions by federal courts
over the 2001-2005 period, CBO estimates that about 350 FOIA
cases are presented annually, and about 6 percent of
complainants subsequently challenge agency decisions and are
reimbursed for attorneys' fees and litigation costs. Those
payments by the Judgment Fund cost about $3 million a year. In
addition, based on information from 15 major agencies over the
2001-2005 period, including the Departments of Veterans
Affairs, Treasury, Defense, Labor, State, and Justice, CBO
estimates that requestors successfully appeal about 1,000 FOIA
cases each year.
CBO estimates that the average cost of litigating a FOIA
lawsuit or administrative appeal is about $6,000 per case.
Assuming that agencies act on about 1,000 FOIA cases each year,
CBO estimates that enacting this legislation would increase
direct spending from the Judgment Fund by $30 million over the
2008-2012 period and $63 million over the 2008-2017 period.
FOIA Fees. FOIA requests from researchers associated with
academic institutions and the news media are charged fees for
the duplication of records that are larger than 100 pages. All
other requestors are charged fees for research time and
duplication costs after the first two hours of research and 100
pages of copying. Those fees are recorded on the budget as
revenues and deposited into the general fund of the Treasury.
Section 3 would expand the definition of news media researchers
to FOIA requestors who have no affiliation with a media outlet
but have a publishing history. Based on a review of annual FOIA
reports from 15 major agencies over the fiscal year 2003-2005
period, CBO estimates that agencies collect about $4 million in
FOIA fees annually. CBO expects that expanding the definition
of the news media would reduce the amount of fees currently
collected for retrieval of information. Based on information
from some of the 15 major agencies, CBO estimates that the
reduction in FOIA fees collected would be less than $500,000
annually.
Spending subject to appropriation
Office of Government Information Services. Section 11 would
establish an Office of Government Information Services within
the Administrative Conference of the United States. The office
would review FOIA policies and practices, make recommendations,
offer mediation services, and conduct audits of agency's FOIA
programs.
Based on information from DOJ and the cost of similar
offices, CBO estimates that implementing this provision would
cost $7 million annually for additional staff to conduct audits
of FOIA programs. CBO expects that the new agency would take
about two years to reach that level of effort. We estimate that
operations of the new office would cost $27 million over the
2008-2012 period, assuming appropriation of the necessary
amounts.
FOIA Reporting Requirements. Section 9 would add a number
of additional reporting requirements to the annual FOIA reports
submitted by all federal departments and agencies. This would
include FOIA information on the time required to process
requests, median and average processing time, expedited and
appeal processing time, and the oldest pending requests. In
addition, S. 849 would require each agency to provide the raw
data used to compile their annual FOIA report. Based on the
costs of similar reports, a review of annual reports by 15
major agencies over the 2001-2005 period, and additional
information from some of those agencies, CBO estimates that
those reporting requirements would cost about $5 million
annually and $24 million over the 2008-2012 period, assuming
the appropriation of the necessary amounts.
Other Reports. S. 849 would require new reports by a number
of government agencies. GAO would be required to report on
critical infrastructure information that is collected by the
government from the private sector but is exempt from FOIA
disclosure. DOJ and OSC would be required to report on legal
actions related to the rejection of FOIA requests, and OPM
would be required to produce a report on FOIA personnel
policies. Based on the costs of similar reports, CBO estimates
that implementing those provisions would cost $6 million over
the 2008-2012 period, assuming the availability of appropriated
funds.
Other Provisions. Additional provisions would require
providing tracking numbers for FOIA requests and would expand
the provisions of Executive Order 13392 issued on December 14,
2005. That order calls upon all federal agencies to improve
their FOIA operations, including customer service and
assistance. Specifically, the order requires agencies to
develop FOIA improvement plans, designate a Chief FOIA officer,
and establish FOIA requestor centers. Based on information from
DOJ and a review of annual reports by 15 major agencies over
the 2001-2005 period, CBO estimates that those provisions would
not significantly increase agencies' costs to implement FOIA.
Intergovernmental and Private-Sector Impact: S. 849
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Previous CBO estimate: On March 12, 2007, CBO provided a
cost estimate for H.R. 1309, the Freedom of Information Act
Amendments of 2007, as ordered reported by the House Committee
on Oversight and Government Reform on March 8, 2007. Both bills
would amend the Freedom of Information Act but have different
provisions, including provisions related to the structure of
the OGIS and the payment of FOIA fees. CBO cost estimates for
the two bills reflect those differences.
Estimate prepared by: Federal Costs: Matthew Pickford;
Impact on State, Local, and Tribal Governments: Elizabeth Cove;
and Impact on the Private-Sector: Amy Petz.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
V. REGULATORY IMPACT EVALUATION
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 849.
VI. CONCLUSION
Passage and enactment of the OPEN Government Act of 2007,
S. 849, is long overdue. This bipartisan legislation reaffirms
the fundamental premise of FOIA--that government information
belongs to all Americans. Open government is not a Democratic
issue, or a Republican issue. It is an American issue.
VII. ADDITIONAL VIEWS
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A. ADDITIONAL VIEWS OF SENATOR KYL
Although the goals of the OPEN Government Act are laudable,
the bill reported by the committee has a number of flaws that
must be addressed. Chief among these is the bill's elimination
of several FOIA exemptions--including for information that is
privileged or law-enforcement sensitive--in cases where a
Federal agency misses the statutory deadline for responding to
a FOIA request. The Justice Department's Views Letter for this
bill, using uncharacteristically strong language, describes
this provision as a ``draconian remedy with enormous
consequences.''
Subsection (b) of FOIA exempts several categories of
information from disclosure under FOIA. The OPEN Government
Act, however, provides that if an agency does not comply with
FOIA's 20-day decision deadline, then no FOIA exemptions shall
apply unless disclosure of the information would harm national
security, disclose personal private or proprietary information,
or is otherwise precluded by law. Among the current, codified
FOIA exemptions that would be defaulted under the OPEN
Government Act if the 20-day deadline were missed are:
information that is privileged in
litigation,
law-enforcement information whose disclosure
could reasonably be expected to interfere with law-
enforcement proceedings,
information whose disclosure would deprive a
person of a fair trial,
information whose disclosure could
reasonably be expected to disclose the identity of a
confidential source,
information about the techniques and
procedures for law enforcement investigations and
prosecutions, and
information whose disclosure could
reasonably be expected to endanger the life or physical
safety of an individual.
Disclosing all of these types of information simply because
a 20-day deadline was not met is a harsh and disproportionate
remedy. Many of these disclosures would harm individuals who
have no control whatsoever over the government's compliance
with FOIA requests--individuals who would not even know that a
FOIA request had been made. Should we really force disclosure
of information ``whose disclosure could reasonably be expected
to endanger the life or physical safety of an individual''
simply because a Federal employee did not meet a FOIA request
deadline?
The Justice Department's Views Letter addresses this issue
as well. The letter states:
Of greatest concern to the Department is the
automatic waiver of the existing exemption for law
enforcement information. The wholesale release of law
enforcement-related documents would have devastating
consequences for ongoing criminal investigations.
Sensitive law enforcement techniques could be exposed,
and the lives of witnesses, confidential informants,
and law enforcement officials would, without a doubt,
be placed in imminent danger. Indeed, the very system
of confidentiality inherent in the federal government's
law enforcement activities would be shattered by the
lack of predictability that this provision would yield.
The Justice Department's letter also raises a number of
other concerns about the OPEN Government Act that ought to be
addressed. For example, the bill legislatively overrules the
U.S. Supreme Court's decision in Buckhannon Board and Care Home
v. West Virginia Dept. of Health and Human Services, 532 U.S.
598 (2001), as that decision applies to FOIA. Buckhannon
clarifies that a party suing the government is not entitled to
attorney's fees under the standard fee-shifting statutes if the
government voluntarily changed its position and gave the
plaintiff what he wanted. The bill would reverse this rule and
allow such a plaintiff to recover attorney's fees.
If the government is forced to pay attorney's fees even if
it settles a lawsuit without court action--if it is forced to
pay even if it voluntarily or unilaterally agrees to turn over
documents, enters into an agreement with the parties, or
resolves the matter in administrative proceedings without going
to court--then we may well find that the government is less
inclined to settle FOIA lawsuits. By punishing the government
for changing its position and handing over the requested
information, this provision of the bill may undercut the
broader purposes of the OPEN Government Act.
Moreover, it is entirely reasonable and to be expected
that, over the course of litigation or administrative
proceedings, new information is uncovered that causes the
government to reevaluate and reverse its initial denial of a
FOIA request. The fee-shifting statute should not deter the
government from acting on that new information and reversing
its earlier FOIA denial. Also, sometimes an initial denial may
be reversed for reasons beyond the control of the agency to
which the request was made--for example, another part of the
government might declassify the requested documents. In these
types of situations, the government should not be punished for
having initially denied the request.
At the very least, a FOIA plaintiff should not be allowed
to recover the costs of maintaining his litigation if the
litigation itself was meritless. Even a meritless lawsuit may
prove enough of a burden to persuade the government to change
its position--or such a lawsuit may generate public pressure
that results in such a change in position. That is all very
well. But if the lawsuit itself was not legally sound, the
plaintiff should not be compensated for bringing the
litigation.
The Justice Department's Views Letter raises a number of
other important points. Rather than reiterate those points
here, I simply include the letter as an attachment to this
statement and urge anyone who is interested in this bill to
read the letter.
Jon Kyl.
----------
March 26, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Department on S. 849, the ``Openness Promotes Effectiveness in
our National Government Act of 2007'' or the ``OPEN Government
Act of 2007,'' which amends the Freedom of Information Act
(FOIA), 5 U.S.C. Sec. 552. The FOIA is a vital and continuously
developing government disclosure mechanism that has been
refined over time to accommodate both technological
advancements and society's maturing interests in a transparent
and fully responsible government. The Department is firmly
committed to full compliance with the FOIA as a means of
maintaining an open and accountable system of government, while
also recognizing the importance of safeguarding national
security, enhancing law enforcement effectiveness, respecting
business confidentiality, and preserving personal privacy.
As a sign of the Department's continued commitment to the
FOIA, it serves as the lead agency in the implementation of
Executive Order 13,392, ``Improving Agency Disclosure of
Information,'' issued on December 14, 2005. This Order has
immediately brought high visibility and focused attention on
the FOIA by mandating the designation of a Chief FOIA Officer,
FOIA Requester Service Centers, and FOIA Public Liaisons, in
each agency. The Order has also focused on the improvement of
FOIA processing by ensuring that agency FOIA operations are
both ``citizen-centered'' and ``results-oriented.'' The
benefits of instituting these policies are already felt
Government-wide, as agencies have developed comprehensive FOIA
improvement plans and have issued their first reports mandated
by this Order.
The Department opposes several sections of S. 849, as
currently drafted, including, most importantly, section 6,
which prevents the Government from relying on a number of FOIA
exemptions, including exemptions for highly sensitive law
enforcement information and privileged material, if the
Government does not meet the statutory deadline for responding
to requests. The Department also has concerns with section 3,
which expands the definition of ``representative of the news
media'' for purposes of assessing FOIA fees; and section 4,
which reinstates the so-called ``catalyst theory'' for
reimbursement of attorneys fees in FOIA litigation. More
generally, the Department is very concerned about the
substantial administrative and financial burdens that this
legislation would impose upon the Executive branch, without
authorizing the resources necessary to implement its statutory
scheme.
Section 6--Time limits for agencies to act on requests
Of grave concern to the Department is section 6(b) of the
legislation, which prevents an agency from relying on a number
of statutorily provided exemptions from FOIA unless it meets
the twenty-day accelerated deadline established in section 6,
or unless the agency can make a ``clear and convincing''
showing to a court that there was ``good cause'' for its
failure to meet the applicable deadline. Although this
provision preserves exemptions for national security
information, Privacy Act-protected information, ``proprietary
information,'' and information otherwise protected by law,
section 6(b) eviscerates several critical exemptions in FOIA
including exemptions for inter- or intra-agency memoranda and
highly sensitive categories of law enforcement records, unless
an agency persuades a court that it has good cause for failing
to meet the deadline.
Section 6 of S. 849 is a misguided attempt to remedy one
perceived problem--compliance with the statutory response
deadlines--with a measure that would eviscerate a central
principle of FOIA--protection of sensitive information. While
the basic purpose of FOIA is to ensure an informed citizenry,
it balances society's strong interest in open government with
other compelling public interests, such as protecting national
security, enhancing the effectiveness of law enforcement,
protecting sensitive business information, protecting internal
agency deliberations and common law privileges and, not least,
preserving personal privacy.
This provision, which would establish that failure to meet
an applicable deadline would lead to the automatic release of
all information with only a few narrow exceptions, is a
draconian remedy with enormous consequences. For example, the
automatic waiver of privileges, including privileges for
attorney-client and attorney work-product information that are
incorporated in FOIA through Exemption 5 and well-established
by common law for centuries, is unprecedented. This would
frustrate the policy behind these privileges and, among other
things, would doubtless create a chilling effect on policy
discussions, create public confusion that could result from
disclosure of reasons and rationales that were not the grounds
for agency action, and cause the premature disclosure of
proposed policies before they have been sufficiently
considered. It would also greatly interfere with government
attorneys' work in preparing for litigation, exposing their
legal strategies, approaches, and views to their opposing
counsel, thereby greatly undermining their ability to represent
their client. It would also chill the exchange of information
to government attorneys from their clients, reducing their
ability to properly represent them.
Of greatest concern to the Department is the automatic
waiver of the existing exemption for law enforcement
information. The wholesale release of law enforcement-related
documents would have devastating consequences for ongoing
criminal investigations. Sensitive law enforcement techniques
could be exposed, and the lives of witnesses, confidential
informants, and law enforcement officials would, without a
doubt, be placed in imminent danger. Indeed, the very system of
confidentiality inherent in the federal government's law
enforcement activities would be shattered by the lack of
predictability that this provision would yield. This is also
troubling since there is greater convergence between law
enforcement activities and homeland security activities.
Further, under section 6(b), any person or organization
with criminal intent (including terrorist organizations) could
possibly gain access to internal military force protection
information (i.e., information concerning the protection of the
Pentagon reservation, munitions sites, and any other military
installation) if an agency possessing such information were
forced to automatically waive any applicable exemption.
Disclosures of such highly sensitive information could have
dire consequences for our military.
Among the limited exceptions that section 6 would allow the
government to invoke after the twenty-day deadline, the
exception stated for ``personal private information'' would be
inadequate in any event. Because this exception is limited to
``personal private information protected by section 552a'' it
would apply only to information protected by the Privacy Act.
This lack of protection for information not protected by the
Privacy Act could result in the public disclosure of personal
information, such as third parties' social security numbers.
Such a disclosure could have severe consequences for
unsuspecting third parties, especially if the social security
numbers were used for criminal purposes, such as identity
theft. Under current law, personnel, medical, and similar files
are exempt from FOIA if disclosure ``would constitute a clearly
unwarranted invasion of personal privacy.'' 5 U.S.C.
Sec. 552(b)(6); see also id. Sec. 552(b)(7)(C). This category
of information is far broader than the information covered by
the Privacy Act. The existing exemption has been interpreted by
the courts to mean that a government decision-maker must
balance the severity of the threat to an individual's privacy
against the public interest in disclosure. See Dep't of the Air
Force v. Rose, 425 U.S. 352 (1976). By narrowing this important
exemption to protect only information covered by the Privacy
Act, S. 849 repudiates the policy of balancing any individual's
privacy interest against the public interests in disclosure.
Thus, S. 849 will significantly limit personal privacy
safeguards.
Section 6(b) does contain a purported safety valve that
would permit a court to waive the harsh application of the
section if an agency ``demonstrates by clear and convincing
evidence that there was good cause for the failure to comply
with the applicable time limit provisions.'' However, by
focusing on the agency's reason for failing to meet the twenty
day deadline, rather than upon the potential harm that
reasonably could be expected to be caused by the radical
disclosures that would occur, this provision ignores the
substantial public interest in avoiding the disclosure of
highly sensitive records.
Although section 6(b) would not eliminate the availability
of the President's constitutional privilege to protect the
interests covered by the statutory exemptions, section 6(b)
would nonetheless raise substantial constitutional concerns
that could make it unconstitutional as applied in particular
circumstances. The uncertainty created by a system that depends
on a court finding ``good cause'' for delay or upon the
invocation of constitutional privilege would likely chill the
candor of the constitutionally-protected deliberations of the
Executive branch or otherwise harm the interests protected by
the statutory exemptions in a way that could compromise the
Executive's discharge of its constitutional functions. Rather
than fostering responsible disclosure, this provision actually
could well force agencies to deny requests by the twenty-day
deadline in order to avoid waiving any exemptions, and thus
needlessly increase appeals and litigation. In addition, this
provision fails to take into account the complexity of many
requests, the need to consult with other agencies, or the need
to search for records in multiple locations, including at
Federal records centers, all of which necessarily and
reasonably add to the time it takes to respond to a request.\1\
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\1\ If enacted, the penalties imposed by section 6(b) would have an
equally adverse effect on NARA's ability to protect under the FOIA
records that are also subject to the Presidential Record Act (PRA).
When processing requests for Presidential records, the PRA requires
NARA to inform the former President of its intent to publicly disclose
the requested records. In conjunction with this statutory requirement,
Executive Order 13,233, ``Further Implementation of the Presidential
Records Act,'' affords the former President (and the incumbent
President) ninety days to conduct a records review. As a result of the
drastic penalties contained in section 6(b) of S. 849, NARA would,
after only twenty-days, forfeit its ability to protect certain records
under the FOIA, even if such records contain sensitive private
information not protected by the Privacy Act, including FBI background
files and other law enforcement or investigatory information.
Additionally, it would be an added burden for NARA to attempt to compel
a court to waive this provision in an effort to protect information for
which it already has a sound legal basis to withhold.
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The Department is also opposed to section 6(a) of S. 849,
which would amend 5 U.S.C. Sec. 552(a)(6)(A)(i)by changing the
twenty-day time limit so that it commences on the date that the
request ``is first received by the agency.'' This represents a
very significant change from current practice in which the
twenty-day clock begins once the appropriate element of an
agency has received the request in accordance with the agency's
FOIA regulations. Beginning the twenty-day time limit as soon
as a request ``is first received by the agency'' does not allow
for the practical necessity of forwarding a request to an
appropriate field office, division, or component, which could
take several or more days.\2\ This provision is thus at odds
with the longstanding practice at all Federal agencies, under
regulations that have been duly promulgated and followed in
accordance with the explicit direction of the Act itself. See 5
U.S.C. Sec. 552(a)(3)(A). For example, Department of Justice
FOIA regulations provide that ``[a] request will be considered
[as] received as of the date it is received by the proper
component's FOIA office.'' 28 C.F.R. Sec. 16.3 (2006).
Additionally, given that agencies make addresses readily
available on their Web sites and in their FOIA Reference
Guides, it is not imposing any undue burden on a requester to
direct his/her request to the appropriate office. Further, when
a requester neglects to address his/her request properly,
agencies routinely route the request to the proper office, so
the requester is not penalized in any way for a failure to
properly address a request. Conversely, this proposed change in
the way the time periods are calculated penalizes the agency
for something completely out of its control. Requesters will
have no incentive to properly address their requests. More
significantly, they will actually have an incentive to use the
most obscure address possible in the hope that the time
expended in properly routing it will render the agency unable
to meet the response deadline.
---------------------------------------------------------------------------
\2\ Importantly, additional mail processing time is required in the
post-9/11 world because the Department, as well as other agencies, now
must x-ray or irradiate incoming mail, including FOIA requests. Five
days might pass while the request is being irradiated and before any
program office of an agency receives the x-rayed mail.
---------------------------------------------------------------------------
The Department is opposed to the second clause of section
6(a) which states that the twenty-day time period to respond to
a request ``shall not be tolled without the consent of the
party filing the request.'' In the course of processing a FOIA
request there are numerous occasions when an agency must stop
its processing in order to get information from the requester,
and the agency should not be penalized for the time it takes
the requester to provide needed information to the agency. For
example, after a request is first received by an agency the
personnel responsible for processing it might determine that
the request fails to reasonably describe the records that are
being sought. In such situations agency personnel routinely go
back to the requester for clarification of the request.
Similarly, during the course of processing a request, the
agency may determine that the search for responsive records
will take longer than anticipated and so will cost more than
the requester has agreed to pay. Again, in such situations the
agency routinely goes back to the requester to see if the
requester would like to narrow its request to reduce the fees
owed, or to see if the requester will agree to pay the fees
that are anticipated. In these situations, when the processing
of the request is necessarily ``on hold'' while the agency
awaits a decision by the requester, the time period for
responding has traditionally been tolled. The language in
section 6(a) would not allow that to happen without the consent
of the requester. That means that absent consent--which is not
likely to be given--the agency will be penalized for the
failure of requesters to provide necessary information in order
for their requests to be processed. Rather than having an
incentive to respond quickly to the agency in order to get
their request back on track, this provision will actually give
requesters an incentive to delay responding to the agency's
request for clarification, or for a commitment to pay fees,
etc. because by doing so, they know that the twenty-day time
period is ticking.
We believe that the draconian penalties in section 6 not
only are unwise, but are also unnecessary since Executive Order
13,392 has improved FOIA operations by requiring agencies to
review their administration of the FOIA and their compliance
with the statutory deadlines. The Executive Order also requires
agencies to implement improvement plans specifically focused on
eliminating or reducing any backlog of FOIA requests. The
Department's preliminary review of reports in this regard
indicates that agencies overall are devoting increased
resources to processing FOIA requests more efficiently and
quickly, and indeed some agencies have already realized
meaningful backlog reduction.
Section 3--Protection of fee status for news media
Section 3 of the legislation, titled ``Protection of Fee
Status for News Media,'' expands the definition of
``representative of the news media,'' and thereby exempts a
larger class of requesters from the obligation to pay what can
sometimes be quite significant fees assessed for searching for
responsive documents. The current law represents a carefully-
struck balance that establishes differing fee levels for
different categories of requesters. For example, an agency is
permitted to charge a requester for document search time,
duplication, and review costs if the request is made for a
``commercial use.'' 5 U.S.C. Sec. 552(a)(4)(A)(ii)(I). An
agency may charge a requester only for document duplication if
the request is made by an educational or non-commercial
scientific institution, whose purpose is scholarly or
scientific, or by a representative of the ``news media.'' 5
U.S.C. Sec. 552(a)(4)(A)(ii)(II). Section 3 of the legislation
amends subclause (II) so that an agency ``may not deny [to a
representative of the news media] status solely on the basis of
the absence of institutional associations of the requester, but
shall consider the prior publication history of the requester''
including Internet publications. Most significantly, it would
further require an agency, in the absence of such prior
publication history, to ``consider the requestor's stated
intent at the time the request is made to distribute
information to a reasonably broad audience.'' Because it can be
assumed that virtually all requesters claiming to be
representatives of the news media will readily state that it is
their ``intent'' to distribute the records to a broad audience,
this expansion of the definition of ``representative of the
news media'' would render the concept of ``representative of
the news media'' virtually meaningless.
Such an expansion of the definition of ``representative of
the news media'' would have severe fiscal and other practical
consequences for the Executive branch, and is ill-advised
without empirical evidence that the current definition of
``representative of the news media'' is insufficient to carry
out FOIA's purposes. The increased taxpayer burden that would
result from the changed definition should be undertaken only
after careful review by Congress in light of limitations being
imposed across the board on domestic discretionary spending.
Indeed, the limitation in section 3 on the Government's ability
to collect fees for FOIA processing seems inconsistent with the
stated desire of many Members of Congress to improve FOIA
timeliness. With no requirement that requesters pay search
fees, they have no incentive to tailor their requests and so
they are likely to make overly broad requests. This, in turn,
will stretch agency resources and will increase the time it
takes to process all requests. The Executive branch cannot
process FOIA requests expeditiously without adequate manpower
and resources, which is dependent on adequate funds, including
FOIA processing fees deposited in the Treasury Department's
general fund.
Section 4--Attorneys' fees
Section 4 of the legislation would reinstate the so-called
``catalyst theory'' for the reimbursement of FOIA litigation
fees. Current law permits a court to assess reasonable
attorneys' fees and litigation costs incurred when the
complainant in a lawsuit challenging an agency's response (or
lack thereof) to a FOIA request has ``substantially
prevailed.'' Section 4 of S. 849 would amend 5 U.S.C.
Sec. 552(a)(4)(E) by altering and expanding the definition of
``substantially prevailed'' to include situations in which a
``complainant has obtained relief through either (I) a judicial
order, an administrative action, or an enforceable written
agreement or consent decree; or (II) a voluntary or unilateral
change in position by the opposing party, where the
complainant's claim or defense was not frivolous.'' We
understand this provision's intent to be the overruling of the
Supreme Court's decision in Buckhannon Board & Care Home, Inc.
v. W. Va. Dep't of Health & Human Resources, 532 U.S. 598
(2001), and of a number of recent court of appeals decisions
that have applied Buckhannon to reject the catalyst theory as a
basis for FOIA attorneys' fee awards. See OCAW v. Dep't of
Energy, 288 F.3d 452 (D.C. Cir. 2002); Union of Needletrades v.
INS, 336 F.3d 200 (2d Cir. 2003).
The Department does not support the reinstatement of the
catalyst theory, for many of the same reasons enunciated in
Chief Justice Rehnquist's Buckhannon opinion. Proponents of the
catalyst theory have argued that it is needed for two reasons.
First, they argue that it would encourage plaintiffs with
meritorious but expensive cases to bring suit. Second, they
argue that it would prevent defendants from unilaterally
mooting an action before judgment to avoid an award of
attorneys' fees. As Chief Justice Rehnquist noted in his
opinion in Buckhannon, however, ``these assertions . . . are
entirely speculative and unsupported by any empirical
evidence.'' Buckhannon, 532 U.S. at 608.
More importantly, the Department is especially concerned
that the catalyst theory, if reinstated, will serve as a
disincentive to a Government agency's decision to voluntarily
change decisions and procedures with respect to FOIA requests,
because doing so could make the agency liable for a
complainant's legal fees. Such a result would be inconsistent
with FOIA's underlying purpose of promoting, rather than
inhibiting, disclosure.
Furthermore, it is unclear what is meant by the inclusion
of an ``administrative action'' as a possible means by which a
requester can obtain ``relief'' that would justify attorneys''
fees. If it is deemed to apply to a requester who receives
documents through the administrative FOIA appeals process, that
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, as well as provide the agency with a
second opportunity to evaluate its response, 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.
Section 7--Tracking numbers
Section 7 would require agencies to establish systems to
assign an individualized tracking number to each request and to
notify requesters of this number within ten days. In addition,
the legislation mandates the establishment of a telephone line
or Internet service to provide information about the status of
the request, including receipt date and estimated completion
date. The need for this provision has been mitigated by the
issuance of the FOIA Executive Order which required that
agencies establish FOIA Requester Service Centers to provide
requesters with information concerning the status of their FOIA
requests. In addition, supervisory personnel have been
appointed as FOIA Public Liaisons to ensure that FOIA
requesters receive appropriate assistance from the service
centers. Moreover, many agencies which receive higher volumes
of requests already notify requesters of assigned tracking
numbers when they first acknowledge receipt of requests.
Section 8--Specific citations in exemptions
Section 8 of S. 849 would amend FOIA's Exemption 3, which
protects information otherwise statutorily exempted from
disclosure, by requiring that newly enacted statutes that
purport to limit public disclosure of information specifically
cite to this section of S. 849. We believe this amendment is
unnecessary. The current version of Exemption 3 was enacted in
1976 (see Pub. L. No. 94-409) to limit Exemption 3's
availability to specific categories of statutes: those that
require agencies to withhold documents with no agency
discretion, or, alternatively, that establish particular
criteria for withholding or refer to particular types of
matters to be withheld. The 1976 amendment to Exemption 3 has
worked well now for over thirty years. Courts have recognized
that the congressional intent to maintain the confidentiality
of particular information is the central consideration in
determining whether a statute falls within Exemption 3. In
focusing on congressional intent, courts have avoided imposing
additional requirements that Congress use any particular
``magic words'' to establish a statute as an Exemption 3
statute. Thus, the Census Act, the Internal Revenue Code, the
National Security Act of 1947, and the grand jury secrecy rule,
Fed. R. Crim. P. 6(e), to take several well-known examples,
have been determined by the courts to qualify as Exemption 3
statutes even though those statutes do not specifically refer
to Exemption 3.
Moreover, subsection (e)(1)(B)(ii) of FOIA now requires
agencies to include in their annual FOIA reports a complete
list of all statutes that the agency relies upon to authorize
withholding under Exemption 3, together with other pertinent
information concerning such withholding. Thus, Congress has a
ready mechanism under current law, created in the 1996 e-FOIA
amendments (Pub. L. No. 104-231), to determine how Exemption 3
is being administered.
Additionally, section 8 could unduly hamper Congress in the
future or even constitute a hidden trap. For example, Congress
has recently enacted appropriations laws to bar the Bureau of
Alcohol, Tobacco, Firearms, and Explosives from releasing
certain sensitive law enforcement data to the public. Because
congressional intent to maintain the confidentiality of such
data is apparent from these appropriations laws, there is no
reason to require, in addition, a specific reference to
Exemption 3 in every subsequent annual appropriations law. Most
significantly, Congress over the years has acted to revitalize
certain export laws that periodically expire while Congress
deliberates over policy matters. These statutes protect
confidential business information submitted to the Government
in connection with export applications, and the courts have
upheld Exemption 3 protection for such matters, based upon the
clear import of the overall statutory scheme. See Times Publ'g.
Co. v. Dep't of Commerce, 236 F.3d 1286 (11th Cir. 2001). Under
S. 849, such confidential business information would
necessarily be subject to disclosure if Congress failed to meet
the additional requirement imposed by S. 849. Additionally, if
this provision is enacted, it is possible that there would be
recurring disagreement as to whether subsequent nondisclosure
statutes that do not clearly reference Exemption 3 have
impliedly repealed or amended section 8. This sort of
uncertainty would eviscerate what appears to be the central
purpose of this provision.
Section 9--Reporting requirements
Pursuant to the 1996 e-FOIA amendments (Pub. L. No. 104-
231), the Department of Justice has responsibility for
collecting information from other Executive branch agencies
concerning FOIA compliance, including the number of
determinations not to comply with requests for records, the
number of appeals, the number of pending requests, and the
median time to process such requests. See 5 U.S.C.
Sec. 552(e)(1). Section 9 expands the existing requirements in
five principal areas: (1) Agencies' detailed response data
based upon the date on which the request was originally
received including the average number of days, the median
number of days, and the range of dates to respond; (2) data
concerning the 10 active requests with the earliest filing
dates; (3) data concerning the 10 active administrative appeals
with the earliest filing dates; (4) data concerning requests
for expedited review; and (5) data on fee waiver requests.
The Department believes that these new reporting
requirements would be a largely unnecessary burden upon
agencies that, as described above, cuts against the timeliness
objectives pursued elsewhere in the bill. In addition, as
described above, using the date a request is ``originally
received by the agency'' as the starting point for determining
time periods will result in a great distortion of the annual
report statistics. If requesters misdirect requests, then the
time spent correcting that error (i.e., the time spent
forwarding the request to the proper office) would be counted
against the agency's processing time. This will result in
statistics that do not actually reflect processing time.
Further, it is not clear that providing the additional data
will provide any new or useful information regarding agency
response times. Importantly, as part of their new Executive
Order reporting requirements, agencies now report on the range
of dates for both pending requests and consults. Moreover,
there has been a great deal of focus on the ten oldest requests
by agencies.
Section 10--Agency records maintained by a private entity:
Current law defines an agency record as information that is
``maintained by an agency in any format, including an
electronic format.'' 5 U.S.C. Sec. 552(f)(2). The Supreme Court
elaborated on this standard by holding that an ``agency
record'' is a document ``. . . either created or obtained by an
agency and under agency control at the time of the request.''
Dep't of Justice v. Tax Analysts, 492 U.S. 136 (1989). The
Supreme Court has also held that Federal participation in, or
funding of, the generation of information by a privately
controlled organization does not render that information an
``agency record'' under the terms of FOIA. See Forsham v.
Harris, 445 U.S. 169 (1980).
Section 10 of S. 849 amends the existing statutory
definition in 5 U.S.C. Sec. 552(f)(2) to include information
``that is maintained for an agency by an entity under a
contract between the agency and the entity.'' The Department
does not object to section 10 if its intention is solely to
clarify that agency-generated records held by a Government
contractor for records-management purposes are subject to FOIA.
On the other hand, the Department would have very serious
concerns if section 10 of S. 849 were intended to disturb over
twenty-five years of settled law by overruling the Forsham and
Tax Analysts decisions. At the very least, section 10 is
ambiguous as currently drafted and should be clarified.
Section 11--Office of government information services
The Department has significant questions and concerns about
section 11, which would create an ``Office of Government
Information Services'' within the Administrative Conference of
the United States. This new office would be charged with
responsibility for reviewing policies and procedures of
agencies, conducting audits of those agencies, issuing reports,
recommending policy changes to the President and Congress to
improve the administration of the FOIA, and offering mediation
services between requesters and administrative agencies.
The Department is concerned about any intent that the
proposed Office of Government Information Services would be
given any sort of policymaking and adjudicative role with
respect to FOIA compliance. Such a role is foreign to the
traditional mission of the Administrative Conference of the
United States, which was tasked with promoting improvements in
the efficiency, adequacy, and fairness of procedures of the
government's regulatory programs by conducting research and
issuing reports. See 5 U.S.C. Sec. 594 (2000). Importantly, the
aforementioned policymaking role remains appropriately placed
with the Department of Justice, which has long held
responsibility for ensuring compliance with the FOIA throughout
the Executive branch. This role is all the more important, now
that the Department serves as the lead agency in implementing
Executive Order 13,392.
Of additional concern is that the Office of Government
Information Services would be authorized by S. 849 to provide
mediation services between agencies and FOIA requesters. It
should be noted that many FOIA disputes are not particularly
well-suited to mediation because, inter alia, the two matters
generally at issue in FOIA litigation--the adequacy of the
search and the assertion of exemptions--are questions of law.
Moreover, the authority given this Office under the bill may
constitute the kind of significant authority that can only be
exercised by officers duly appointed under the Appointments
Clause, U.S. Const. art. II, sec. 2, cl. 2, and if that is the
case, the provision would raise constitutional concerns.
Further, the establishment of such an office would be
unwarranted and redundant. Agencies routinely review their FOIA
policies and procedures to ensure that they are adequately
funded for the administration of the program. In fact, with the
recent issuance of Executive Order 13,392, agencies are now
required to scrutinize their processing of FOIA requests and
report to the Department of Justice on their improvements made
in that regard. Agencies then report any deficiencies in the
implementation of their improvement plans to the Attorney
General and the President's Management Council. Also, the
Executive Order required agencies to appoint Chief FOIA
Officers, who ``have agency-wide responsibility for efficient
and appropriate compliance with the FOIA.'' This requirement
ensures high-level visibility and accountability by an agency's
``senior official.'' Further, the Department of Justice and the
Government Accountability Office (GAO) already perform the
function of holding agencies accountable, working quite well
together. Indeed, there have been several GAO reports analyzing
Government-wide administration of FOIA during just the past
four years.
Additionally, the creation of a separate, independent
office to provide Ombudsmen-type services to requesters is
unnecessary in light of all agencies' meeting the Executive
Order's requirement to designate FOIA Public Liaisons and
establish FOIA Requester Service Centers. The Public Liaisons
and Requester Service Centers are there to provide information
to the public about the status of their requests, to ensure
that agencies use a ``service-oriented'' approach in responding
to FOIA-related inquiries, and to resolve disputes.
Finally, both sections 11 and 13 of the bill appear to
require the submission of legislative recommendations to
Congress by Executive branch agencies, requirements which
conflict with the President's authority to submit only such
legislative proposals as he deems ``necessary and expedient.''
See U.S. Const. art. II, sec. 3. Any such provisions in the
bill should be precatory rather than mandatory.
Conclusion
Since its enactment in 1966, FOIA has firmly established an
effective statutory right of public access to Executive branch
information in the Federal government. But the goal of
achieving an informed citizenry is often counterpoised against
other vital societal aims, such as the public's interest in
effective and efficient operations of government; the prudent
use of limited fiscal resources; and the preservation of the
confidentiality and security of sensitive personal, commercial,
and governmental information.
Though tensions among these competing interests are
characteristic of a democratic society, their resolution lies
in providing a workable scheme that encompasses, balances, and
appropriately protects all interests, while placing primary
emphasis on the most responsible disclosure possible.
Regrettably, S. 849, however well intentioned, does not
provide a workable regime for effective, efficient compliance
with the FOIA, nor does it provide a reasonable balance for the
competing and equally compelling governmental aims involved
here.
Thank you for the opportunity to present our views. The
Office of Management and Budget has advised us that from the
perspective of the Administration's program, there is no
objection to submission of this letter.
Sincerely,
Richard A. Hertling,
Acting Assistant Attorney General.
B. ADDITIONAL VIEWS OF SENATOR CORNYN
The National Security Archive,
The George Washington University,
Washington, DC, May 10, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senators Cornyn and Leahy: On April 23, 2004,
Professor Ralph Begleiter, a University of Delaware professor
and a former CNN correspondent, filed a Freedom of Information
Act (FOIA) request seeking two categories of information: (1)
copies of 361 photographic images of the honor ceremony at
Dover Air Force Base for fallen U.S. military returning home to
the United States that already had been released to another
FOIA requester; and (2) similar images taken after October 7,
2001 at any U.S. military facility.
The unnecessarily prolonged history of this FOIA request
demonstrates how plaintiffs often are forced to take the
extreme measure of filing a lawsuit to get the government to
release information (which in this case probably was not too
hard to find or review). And then how, when faced with the
obligation to respond in court to the unreasonable denial of
the FOIA request or unnecessary delay in processing, the
government sometimes simply releases the records. This
litigation strategy imposes significant burdens on the FOIA
requester, who must locate counsel and participate in
litigation, but denies the requester any recompense for
fulfilling the ``private attorney general'' role envisioned by
the FOIA, since the absence of a final court ruling requiring
the disclosure often denies the plaintiff statutory attorneys'
fees.
On June 30, 2004--48 business days after Professor
Begleiter's request was filed and more than twice the response
time permitted under the FOIA--Mr. Begleiter filed an
administrative appeal of his April 23, 2004 FOIA request. The
appeal was never acknowledged or responded to by the Air Force.
As of September 2004--five months after the request was
filed--Professor Begleiter had received no substantive response
to the FOIA request or administrative appeal. Professor
Begleiter then contacted each of the two FOIA personnel at the
Department of Air Force who had acknowledged receipt of the
FOIA request and was told by one person that there were no
records and by another that the request was being processed. It
was at that point that Professor Begleiter determined to file
suit.
On October 4, 2004, Professor Begleiter filed suit for the
records requested on April 23, 2004, and in subsequent FOIA
requests for similar images. On November 22, 2004, the Air
Force provided Professor Begleiter a CD-ROM with the 361 images
that had been released six months earlier to another FOIA
requester and denied the remainder of his request claiming that
it had no more responsive records. When Professor Begleiter
demonstrated to the Air Force in an administrative appeal that
its response was incorrect--since he had evidence that numerous
other photographic images fitting the description in his FOIA
request existed--the Air Force asked for additional time to
search a range of components and agencies that had not been
searched in the first place. Professor Begleiter, through
counsel, agreed to provide the Air Force with additional time
and the litigation was stayed at the end of December 2004
pending completion of the search. At the end of February 2005,
Professor Begleiter agreed to wait another 30 days for the
search to be completed. On March 25, 2005, however, Professor
Begleiter informed the court and the Air Force that his counsel
was preparing a motion for summary judgment based on the Air
Force's failure to process the FOIA request. In response to
that notice, on April 8, 2005, the government advised Professor
Begleiter's counsel that hundreds of additional images would
soon be provided. Ninety-two images were provided on April 15,
and an additional 268 images were provided on April 25, 2005.
Professor Begleiter is in the process of deciding future steps
in the lawsuit.
It was not until he filed his lawsuit that Professor
Begleiter obtained release of records that previously had been
provided to another FOIA requester. It took an entire year, the
filing of a lawsuit, and finally the notice that a summary
judgment motion was being prepared to obtain any additional
substantive response to the FOIA request. In my view, this sort
of manipulation of the timing of records releases is a
purposeful litigation strategy designed to put off release of
information that someone does not want to release until the
government knows that it can no longer resist because a court
will not agree with the withholding. It is an attempt to evade
FOINs attorney's fees provision by denying the FOIA requester a
judicial decision ordering the release. It diverts FOIA
requesters' resources unnecessarily into litigation that could
be avoided by proper initial handling of FOIA requests.
Please feel free to contact me with any questions you may
have or for more information about Professor Begleiter's
lawsuit.
Thank you for your efforts to strengthen the accountability
of our government agencies.
Sincerely,
Meredith Fuchs,
General Counsel.
----------
Law Office of
Robert Ukeiley,
Berea, KY, May 10, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn and Senator Leahy: It is my
understanding that Congress is considering changing the
language of the Freedom of Information Act (FOIA) to allow for
the recovery of attorneys' fees and expenses if the agency
turns over the requested documents after a suit is filed,
regardless of whether or not a court orders the agency to turn
over the documents. I think such a change would serve the
public interest.
In the following two cases, I filed suit, and shortly after
I filed suit, the agency turned over the requested documents
and I did not recovery attorney fees.
Forest Guardians v. U.S. Fish and Wildlife Service, 04-N-
1396 (OES)(D.Colo. 2004)
Forest Guardians v. U.S. Fish and Wildlife Service, 04-MW-
2529 (OES)(D.Colo. 2005)
I generally represent my clients on a pro bono basis.
However, I am no longer able to take most FOIA cases because I
know it is highly likely that the agency will turn over the
documents after I file suit and then refuse to pay attorneys'
fees and expenses.
Thank you for your consideration of this important issue.
Sincerely,
Robert Ukeiley.
VIII. CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that it is
necessary to dispense with the requirement of paragraph 12 to
expedite the business of the Senate.
