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35–801 PDF 2007

S. HRG. 110–55

OPEN GOVERNMENT: REINVIGORATING THE

FREEDOM OF INFORMATION ACT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MARCH 14, 2007

Serial No. J–110–18

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 5

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 4

prepared statement .......................................................................................... 35

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 19

prepared statement .......................................................................................... 49

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 70

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3

WITNESSES 

Cary, Katherine, General Counsel, Texas Office of the Attorney General, 

Austin, Texas ........................................................................................................ 12

Curley, Tom, President and Chief Executive Officer, The Associated Press, 

Representing the Sunshine in Government Initiative, New York, New York 10

Fuchs, Meredith, General Counsel, National Security Archive, George Washington University, Washington, D.C. .................................................................. 6

Haskell, Sabina, Editor, Brattleboro Reformer, Brattleboro, Vermont ............... 9

QUESTIONS AND ANSWERS 

Responses of Meredith Fuchs to questions submitted by Senator Leahy ........... 26

SUBMISSIONS FOR THE RECORD 

Cary, Katherine, General Counsel, Texas Office of the Attorney General, 

Austin, Texas, statement ..................................................................................... 32

Curley, Tom, President and Chief Executive Officer, The Associated Press, 

Representing the Sunshine in Government Initiative, New York, New York, 

statement .............................................................................................................. 37

Fuchs, Meredith, General Counsel, National Security Archive, George Washington University, Washington, D.C., statement and attachments ................. 50

Haskell, Sabina, Editor, Brattleboro Reformer, Brattleboro, Vermont, statement ...................................................................................................................... 67

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OPEN GOVERNMENT: REINVIGORATING THE 

FREEDOM OF INFORMATION ACT 

WEDNESDAY, MARCH 14, 2007

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 10:07 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feingold, Cardin, Specter, Cornyn, and 

Coburn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Today, our Committee will hold 

an important hearing on reinvigorating the Freedom of Information 

Act. I believe the enactment of the FOIA 40 years ago was a watershed moment for our democracy. FOIA guarantees the right of all 

Americans to obtain information from their Government and to 

know what their Government is doing. 

Now in its fourth decade, it has become an indispensable tool in 

protecting the people’s right to know. It sheds light on bad government policies and government waste, fraud, and abuse. Every administration, Democratic or Republican, will send out plenty of 

press releases when they are proud of things. It takes FOIA to find 

out when they have made mistakes. 

Just this week, amid the growing scandal regarding the firing of 

several of the Nation’s U.S. Attorneys, we witnessed the importance of openness in our Government. We have also witnessed the 

importance in sunshine laws with the Justice Department’s Inspector General’s report on the FBI’s abuse of National Security Letters. That was a report required by the sunshine provisions that 

Senator Specter, myself, and others in Congress worked hard to include in the PATRIOT Act reauthorization bill. 

Openness is a cornerstone of our democracy. FOIA lets us know 

what is happening. Whether it is human rights abuses in Iraq, Afghanistan, and Guantanamo Bay, environmental violations at 

home, public corruption, information about many of the important 

issues of our time has been obtained through FOIA. But FOIA is 

facing challenges like it never has before. 

During the past 6 years, the administration has allowed lax 

FOIA enforcement and a near obsession with Government secrecy 

to dangerously weaken FOIA and undercut the public’s right to 

know. That is because currently Federal agencies operate under a 

2

2001 directive from then Attorney General Ashcroft that reverses 

the presumption of compliance with FOIA requests that had been 

issued by the former Attorney General. The administration has 

sought to erode FOIA by including a broad FOIA waiver for critical 

infrastructure information in the charter for the Department of 

Homeland Security, the biggest roll back of FOIA in its 40-year history. 

The setbacks to FOIA are coupled with the expanding use of 

Government secrecy stamps to over classify Government information. Billions of dollars of taxpayers’ money is spent every year to 

classify things that sometimes have been on Government web sites 

for months before they are classified. We have the unprecedented 

use of presidential signing statements and the state secrets privilege and so on. These plague FOIA. 

In fact, I was checking with the Federal Government, and I said, 

‘‘What is the oldest FOIA request that is pending and has not been 

answered?’’ 1989. That was before the collapse of the Soviet Empire. Things have changed. I praised the President for issuing a directive last year to move forward for Government agencies to improve their FOIA services, but today, more than a year later, they 

are less apt to get answers than they were before. 

The Government Accountability Office found that Federal agencies had 43 a Representatives in Congress from the State of percent more FOIA requests pending and outstanding in 2006 than 

they had in 2002. As the number of FOIA requests continues to 

rise, the agencies are not keeping pace. OpenTheGovernment.org 

says the number of FOIA requests submitted annually has increased by more than 65,000 requests, but, of course, when you do 

not answer them, they are just pending and are carried forward. 

And then you have the exemptions under Section (b)(3) of FOIA 

that has allowed FOIA exemptions to be snuck into legislation, 

sometimes with no debate whatsoever, and passed. Then we have 

a new report by the National Security Archive stating that, 10 

years after Congress passed the Electronic Freedom of Information 

Act—E–FOIA—which I co-authored in 1996, Federal agencies still 

do not comply with it. 

Earlier this week, Senator Cornyn and I reintroduced the OPEN 

Government Act. We drafted this bill after a long and thoughtful 

process of consultation with a whole lot of people. 

I appreciate the strong partnership that I have with Senator 

Cornyn on open government issues. The thing we both came to conclude is that the temptation to withhold information can be either 

in Democratic or Republican administrations. Neither of us knows 

who is going to be in the new administration not quite 2 years from 

now. But we do know, both of us, that if we put in strong FOIA 

legislation, they are going to have to answer questions, and we are 

all going to be better for it. After all, Government is there to serve 

all of us, not the other way around. And the only way we can know 

that is if they answer questions. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator Specter? 

3

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. I agree with your 

basic premise that transparency and openness is the very basis of 

a democracy, and the Freedom of Information Act, which was 

passed more than 40 years ago, could be a very major step forward 

in providing that transparency, providing it is followed or it is enforced. To see the statistics which have been published recently 

that, out of 149 Federal agencies, only 1 in 5 posts on its website 

all records which are required is very disturbing. And websites 

today are a principal, if not the principal way of transmitting that 

sort of information. 

I have noted the work which is done by the National Security Archives, talking to Ms. Fuchs for a few moments before we started 

here. To look at the name of the National Security Archives, you 

would think it was some high-powered Federal agency, and it is a 

nonprofit. But they know the questions to ask, and there is much 

of national security which is outdated or can be disclosed to the 

public safely. And as I said to Ms. Fuchs, she knows the questions 

to ask. And she needs help from a statute which can be enforced. 

I was Talking to Mr. Tom Curley of the Associated Press about 

the subject of investigative reporting. It has changed a lot in the 

past several decades. When I was district attorney of Philadelphia 

many years ago, there was very heavy investigative reporting by 

the Philadelphia Inquirer and the Philadelphia Bulletin. Today, 

there is no more Philadelphia Bulletin, as so many afternoon newspapers have ceased to exist. And the Inquirer has changed hands 

as a result of many cutbacks in staff, and investigative reporting 

is gone. So that the access to Federal records through the Freedom 

of Information Act is really a very, very important item. And I believe it has become even more so in the course of the past several 

weeks as we have seen the heavy intrusion into sources for newspaper reporters, with a parade of reporters taking the stand in a 

highly unusual fashion in the Libby trial. 

I hope that we will move ahead with the legislation which will 

provide on the Federal level a reporter’s privilege. There is a split 

in the circuits. It is a very unclear, muddy situation. There should 

be an exception on national security cases, but I believe that before 

you put a reporter in jail, especially for a long period of time, like 

Judith Miller was for 85 days, there ought to be a very, very serious national security interest involved. And in that matter, what 

started out as the outing of a CIA agent, which is an important national security matter, that element was dropped early on. And 

then the leaker was discovered to be Richard Armitage, the Deputy 

Secretary of State. So it is a little hard to see why so many reporters were pursued with so much intensity, and especially leading to 

the incarceration of Ms. Miller for a very long period of time. So 

I think the alternative here of having some real action under the 

Freedom of Information Act is very, very important. 

In the 42 seconds I have left on a 5-minute opening, I want to 

commend Senator Leahy and Senator Cornyn for their leadership 

on this matter, on the legislation. I did not get through the pile of 

requests yesterday in time to be an original cosponsor, so I will be 

an un-original cosponsor. 

4

[Laughter.] 

Senator SPECTER. And add my name to that legislation today. 

Chairman LEAHY. Without objection. 

Senator SPECTER. And, Mr. Chairman, I want to yield back my 

14 seconds. 

Chairman LEAHY. Thank you. Normally we would get right into 

this, but with Senator Cornyn as one of the two main sponsors of 

this, I do want to hear from him. 

Senator SPECTER. If I may say one more word, I am going to 

yield to my distinguished colleague, Senator Cornyn, who will take 

the lead on this side of the aisle. We are very heavily engaged in 

the U.S. Attorneys issue, and—

Chairman LEAHY. I read about that. 

[Laughter.] 

Senator SPECTER. And with Senator Leahy occupied, I better go 

take care of some other Committee business. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

We have a few things on the agenda, but, Senator Cornyn? 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. I appreciate your 

comments and your leadership on this important issue, and I am 

proud to join you in what I think will be very beneficial legislation, 

which will create greater transparency. Almost as importantly, this 

will create some procedures with real consequences for the handling of Freedom of Information requests. 

I would note Senator Leahy is one of the few members of this 

Committee who actually participated in the passage of Freedom of 

Information Act legislation. My experience and my passion for this 

issue really came from my service as Texas Attorney General, and 

I would just note that in that capacity I was responsible for enforcing our own State Sunshine Laws, our own State open government 

legislation. And, you know, I think the Federal Government can 

learn a lot from the States, and in this area in particular. And I 

am proud that Missy Cary, who was my right arm on so many of 

these open government issues, is going to be testifying today and 

perhaps providing some helpful information to Congress on how we 

might embrace some of the experience of the States in improving 

our transparency and the procedures by which we handle open government requests. 

I have a longer statement, which I would ask to be made part 

of the record. 

Chairman LEAHY. Without objection. 

Senator CORNYN. Thank you. I will keep this short and sweet so 

we can hear from the witnesses. But I do want to quote from a portion of Ms. Cary’s statement, which itself quotes the policy statement that introduces the Texas Public Information Act, because I 

think it so concisely and so accurately states the issue. 

It says, ‘‘The people, in delegating authority, do not give their 

public servants the right to decide what is good for the people to 

know and what is not good for them to know. The people insist on 

5

remaining informed so that they may retain control over the instruments they have created.’’

To me, that very concisely states the issue, and I would just close 

by saying the entire legitimacy of our form of Government and selfdetermination is premised upon consent of the governed. We, the 

people, are in charge. The instruments, in the words of the Texas 

Public Information Act, the Government, do not tell us what is 

good for us. We tell the Government what we want. But the only 

way we can do that knowledgeably is to know what is going on. 

And with so much temptation to hide the ball—and we all understand that human nature is the same whether it is Republican or 

Democrat, the temptation is to trumpet your successes and to hide 

your failures, and we all understand why people do that. But it is 

important to recognize that the very legitimacy of our form of Government is premised upon consent of the governed. And the people 

cannot consent to what they do not know, and that is why this legislation and this hearing are so important. 

Thank you very much. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

Chairman LEAHY. Thank you. And, Senator Cornyn, Senator 

Specter is not coming back, if you are going to take the role of the 

senior Republican here, come on down. You may have difficulty getting re-elected in Texas if we all move down. 

I would ask the witnesses to please stand and raise your right 

hand. Do you solemnly swear that the testimony you are about to 

give before this Committee will be the truth, the whole truth, and 

nothing but the truth, so help you God? 

Ms. FUCHS. I do. 

Ms. HASKELL. I do. 

Mr. CURLEY. I do. 

Ms. CARY. I do. 

Senator COBURN. Mr. Chairman, might I have the privilege of 

just a few comments? 

Chairman LEAHY. Of course. 

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. I have another hearing I have to go to. 

You know, it is interesting that we have a letter in my office 

from somebody who has been trying to get information through 

FOIA for 18 years—18 years. In this past Congress, we passed the 

Accountability and Transparency Act, which is going to help. 

But one of the reasons there is a crisis of confidence in this country over the Government is because there is not transparency. 

Without transparency, accountability cannot be carried out. 

I hope to eventually become a cosponsor of this legislation. There 

are a couple of small areas in it that I have concerns with, but the 

more information the American public has, it builds confidence, 

and it also corrects errors. And it is something we ought to all be 

engaged in. 

The other thing I would caution my fellow Senators is just because we pass a law does not mean it is going to happen. You saw 

that evidenced yesterday on the floor vote. There is a law called the 

6

Improper Payments Act. It mandates every agency of the Government to do a review of where they are at risk and report to Congress. The Senate refused to force once agency to comply with that 

law yesterday, which means none of the other agencies have to 

comply with it either, since now we have voted that Homeland Security does not have to comply with it. 

So it is important for us to be realistic. We can pass all the laws 

we want, but unless Congress is going to put teeth into the laws 

with consequences, a FOIA change is not going to happen unless 

there is teeth behind it. 

So I thank the Chairman for having this hearing. I am very impressed and excited about the bill, and hopefully the small changes 

that we would like to see in it will allow us to cosponsor it. 

Chairman LEAHY. Thank you. Thank you very much. 

Our first witness will be Meredith Fuchs. She is General Counsel 

for the National Security Archive. During the time she has been 

there, she supervised five governmentwide audits of Federal agency 

FOIA performances, including an audit released this week entitled 

‘‘File Not Found: Ten Years After E–FOIA, Most Agencies Are Delinquent.’’ That gives some indication what the report says. Previously, she was a partner at the Washington, D.C., law firm of 

Wiley, Rein & Fielding and served as a law clerk to Hon. Patricia 

Wald of the U.S. Court of Appeals for the District of Columbia Circuit and the Honorable Paul Friedman, U.S. District Court for the 

District of Columbia. She graduated from the London School of Economics and Political Science with a Bachelor’s of Science degree 

and received her J.D. cum laude from the New York University 

Law School. 

Please go ahead. 

STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL SECURITY ARCHIVE, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, D.C. 

Ms. FUCHS. Chairman Leahy, Ranking Member Specter, and 

members of the Senate Committee on the Judiciary, I am pleased 

to appear before you to support efforts to improve the Freedom of 

Information Act. 

Senator Leahy already talked about the National Security Archive. We are a nonprofit research institute and leading user of the 

FOIA. I have attached to my written statement our E–FOIA report 

that was issued this week, and I would be happy to talk about it 

in questions. But I want to touch on a few other issues about why 

it is so important today for Congress to act. 

There are many ways to measure the role of the Freedom of Information Act in our Nation. One way is to look at the work of the 

news organization headed by Mr. Curley, who sits on this witness 

panel. The AP has reported remarkable news stories based on 

records released under FOIA, but this would not have been possible 

if the AP had not been willing to litigate in court to enforce its 

rights to information. 

This illustrates a significant problem. While the FOIA has been 

a powerful tool to advance honesty, integrity, and accountability in 

Government, there is still a culture of resistance to the law in 

many Federal agencies. Instead of viewing the public as the cusVerDate 0ct 09 2002 15:19 Jun 13, 2007 Jkt 035801 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\35801.TXT SJUD1 PsN: CMORC
7

tomer or part of the team, the handling of FOIA programs at some 

agencies suggests that the public is considered the enemy and any 

effort to obstruct or interfere with the meddlesome public will be 

tolerated. 

The FOIA is a unique law. There is no Federal, State, or local 

agency that enforces it. It depends on the public to make it work 

with the tools provided by Congress and an independent judiciary 

that is willing to remind agencies of their obligations. Based on 

their own reporting, we know agencies will not make FOIA a tool 

for timely education about Government activities. 

Each agency is required to submit an annual report that provides 

FOIA processing statistics as well as information on the agency’s 

progress in achieving goals that they set themselves under FOIA 

improvement plans that were mandated by Executive Order 13392. 

The reports for fiscal year 2006 were due by February 1, 2007. As 

of this past Monday, the reports of only 8 out of 15 Federal departments and only 51 out of 75 Federal agencies were available. 

The Department of Justice has taken the lead on guiding agencies through the Executive order process. Its own annual report acknowledges that DOJ components have failed to meet 30 different 

goals set out in its FOIA improvement plan. Most striking to me 

is the Federal Bureau of Investigation section, which indicates that 

eight of the FBI’s FOIA improvement goals were not met. For some 

of these goals, the FBI simply pushed back its deadlines by 1 year. 

For example, they reported that they had 60 vacancies in their FBI 

FOIA staff and set a goal to fill those vacancies by September 30, 

2006. They did not do it, and instead the goal has now been moved 

to September 30, 2007. They set a goal to review and update their 

website by December 31, 2006, and as you can see from our E–

FOIA report, it is much needed. They failed to do it, and instead 

moved the deadline to December 31, 2007. 

As you know, the FOIA requires a response to FOIA requests 

within 20 business days. Attached to my testimony is a compilation 

of the date ranges of pending FOIA requests at Federal agencies. 

The list was compiled from the agency annual reports referenced 

above. 

As you can see from the charts, at least seven departments have 

FOIA requests still pending that are more than 10 years old. An 

additional seven have requests that are more than 5 years old. And 

28 more have requests that are more than a year old. And those 

are just the agencies whose reports are already available. 

At a hearing held in the House of Representatives on February 

14, 2007, Melanie Pustay from the Department of Justice testified 

that agencies have made great progress handling their backlogs. 

While this certainly may be true, I want to give you an example 

of how they are eliminating backlogs. 

The story begins in 2001 when my organization, the National Security Archive, received a series of letters from the Department of 

the Treasury asking us whether we would continue to be interested 

in 31 individual FOIA requests that had been submitted throughout the mid-1990’s. We indicated that we continue to be interested. 

Then in December 2005, President Bush issued Executive Order 

13392, which specifically directed agencies to set goals designed to 

reduce or eliminate their backlogs. Here is what happened next. 

8

On June 14, 2006, the Department of Treasury set a goal to reduce its FOIA backlog by 10 percent by January 1, 2007. Starting 

in August 2006, we began to get letters from Treasury asking if we 

continued to be interested in our FOIA requests. The letters 

warned ‘‘if we do not receive a reply...within 14 business days...we 

will close our files regarding this matter.’’

On January 9th, I wrote a letter to Treasury in which I wrote: 

‘‘In many instances, we have received two or three letters [threatening to close] a particular FOIA request despite the fact that we 

already advised the Department of our continued interest...’’ I concluded, ‘‘I request that you do not close any Archive FOIA request 

or appeal without processing it.’’

On February 23rd, Treasury sent another letter asking whether 

we continue to be interested in several additional old FOIA requests. In it, they acknowledged they received my letter. ‘‘We received a letter from Meredith Fuchs of the National Security Archive...[but] we are in the process of reducing [Treasury’s] significant backlog by communicating with requesters as to which of 

those requests have gone stale.’’

We received those letters for the same 31 requests that we were 

asked to abandon in 2001. But that is not the punch line. 

The punch line is that some of the letters that we received since 

August also indicated that the original requests—which were submitted in the mid-1990’s—have been destroyed, and they asked if 

we could send them new copies of our FOIA requests. Well, I wonder what the Department of Treasury FOIA program has done in 

the last 6 years after they first asked us to abandon our requests. 

And it certainly be interesting to know how many requests they are 

able to close in this manner under the Executive order’s mandate 

to reduce backlogs. While this may be one way to eliminate backlogs, it cannot possibly be what Congress intended from FOIA. 

There are several provisions of the OPEN Government Act of 

2007, introduced yesterday, that I think are critical for improving 

the functioning of FOIA. Most critical are the provisions that restore the catalyst theory for attorneys’ fees awards and the provisions for better reporting. I detail the benefits of these and other 

provisions in my written testimony, and I am happy to respond to 

your questions. 

[The prepared statement of Ms. Fuchs appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. You should probably 

send them a copy of ‘‘Catch–22’’ in response to the requests. 

[Laughter.] 

Chairman LEAHY. Sabina Haskell is the editor of the Brattleboro 

Reformer located in Brattleboro, Vermont, in Windham County, a 

very pretty part of our State. But she is also the President of the 

Vermont Press Association which is statewide; a founding member 

of the newly created Vermont Coalition for Open Government, a 

nonprofit consortium of organizations and individuals who want to 

enhance the performance of Vermont’s right-to-know laws; has 10 

years experience in Vermont journalism as a reporter, assignment 

editor, city editor, and editor of the Bennington Banner, Rutland 

Herald, and Brattleboro Reformer. Just pure coincidence we have 

someone from Vermont here. 

9

Ms. HASKELL. Pure coincidence. 

[Laughter.] 

Chairman LEAHY. Please go ahead, Ms. Haskell. 

STATEMENT OF SABINA HASKELL, EDITOR, BRATTLEBORO 

REFORMER, BRATTLEBORO, VERMONT 

Ms. HASKELL. Good morning. First of all, thank you for inviting 

me to speak here today and to talk to you about the needed forms 

to the Freedom of Information Act. I am Sabina Haskell, and I am 

the editor of the Brattleboro Reformer, and we are a circulation 

10,000 paper in southeastern Vermont. 

Even at that small size, we are the third largest newspaper in 

Vermont, and we are in good company. Eighty-five percent of the 

newspapers in the United States have circulations of 50,000 or less. 

The smaller newspapers generally pursue public records from the 

State and local officials, not the Federal sources, but our efforts to 

do so are a quagmire, and they are getting worse. 

As President of the Vermont Press Association, I can tell you 

that we are very frustrated with the de facto sentiment of secrecy 

that seems to be appearing at every level of government, and I 

think it begins at the top, where we are getting stripped of our constitutional rights. 

The fear-mongering that is exposed at the Federal level where 

questions and requests for information are viewed as suspect is 

being replayed time and time again at the State and local level. 

And I believe the effort to seal off the Federal Government is the 

primary reason that there are increased efforts to close the doors 

on transparent Government at the State and local level. 

The anecdotes I am going to share with you come from the dozen 

dailies and the four dozen non-dailies that are members of our association. If you multiply us in Vermont by all 50 States and 1,500 

newspapers, you can understand the problem. 

The Freedom of Information Act is supposed to allow anybody, 

regardless of citizenship, whether they are a person or a business, 

to get a record without explanation or justification. We are supposed to get those records with little effort and in a timely manner. 

Only yesterday, we were told by the Vernon Fire Department that 

we could not have the records to their books. And, in fact, the fire 

chief took my reporter and said to him, ‘‘If you publish this, I can 

assure you there is going to be retaliation.’’

Chairman LEAHY. I should note that the Vernon Fire Department is in a town where there is a nuclear reactor. 

Ms. HASKELL. Yes, thank you, Senator. And we went ahead and 

we started the legal process, and we will be fighting this, as you 

can imagine. 

When we asked for a copy of the Brattleboro police chief’s contract and a record of how many days he spent at the station, we 

were rebuffed. ‘‘Why do you want that? What do you need that information for?’’ We were told that we would get the contract when 

we gave them those answers, and we still do not have the contract. 

In northeastern Vermont, a little non-daily wanted to do a story 

about a new handicapped-accessible ramp outside of the town hall, 

built of pressure-treated lumber. And when they asked for an illustration, an architect’s rendering to go with the illustration, they 

10

were told they could not have it because of homeland security reasons. 

In Winooski, the school board made a sweetheart deal with the 

superintendent and bought out his contract. The Burlington Free 

Press sued. It took them 18 months to win the case, and in that 

time, everybody’s interest had gone on to something else, and the 

attorney said to the Free Press, ‘‘You don’t think we lost, do you?’’

And in Jamaica, a town official asked for some documents about 

the sheriff’s department. He wanted time sheets for her. He wanted 

time sheets for a deputy and for a detective. He wanted the records 

to show what expenses had been reimbursed, and he asked for 

records to show their whereabouts for 3 days. Two of them were 

dismissed under public records law, and the third she outright told 

a lie. And, in fact, she was convicted of embezzlement and resigned 

in disgrace, obviously. So he paid for that all by himself and had 

to do it, and he still lost. 

The amendments that you propose will go a long way to make 

the Freedom of Information Act stronger. We do not get the records 

we want within the allotted time, we have to chase them on our 

own dime, and enforcement is lax. And the amendments that you 

will do will help us at the local and the State level. 

Thank you. 

[The prepared statement of Ms. Haskell appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, and I apologize. Your 

first name is pronounced ‘‘Sabina.’’

Ms. HASKELL. That is okay. Everybody does it wrong. 

Chairman LEAHY. I had it wrong. 

Tom Curley, who is going to be our next witness, was named 

President and Chief Executive Officer of the Associated Press in 

June 2003. Mr. Curley has—and I say this as a compliment—deepened the Associated Press’ longstanding commitment to the people’s right to know. He serves as one of the country’s most aggressive advocates for open government. He previously served as President and publisher of USA Today. He holds a political science degree from Philadelphia’s LaSalle University, a master’s degree in 

business administration from Rochester Institute of Technology. 

And, Mr. Curley, thank you very much for coming here today. 

STATEMENT OF TOM CURLEY, PRESIDENT AND CHIEF EXECUTIVE OFFICER, THE ASSOCIATED PRESS, REPRESENTING 

THE SUNSHINE IN GOVERNMENT INITIATIVE, NEW YORK, 

NEW YORK 

Mr. CURLEY. Mr. Chairman, Senator Cornyn, thank you. Your efforts to strengthen the Freedom of Information Act show an absolutely courageous and timely commitment to the essence of our 

democratic values. 

FOIA was a promise to the people that, whatever they might 

want to know about their Government, they could find out and that 

the law would back them in all but a few kinds of highly sensitive 

or confidential matters. Well, the law does back them, but in too 

many cases, the Government does not back the law. 

I know you are aware that the FOIA backlog requests are rising 

every year. The failure is costly in ways the numbers cannot show. 

11

When agencies respond, as the law says they should, the information they reveal can provoke public response that improves Government operations, curbs waste and fraud, and even saves lives. 

When agencies do not respond, those opportunities are delayed or 

lost entirely. 

I can tell you about one such opportunity. In 2005, Government 

scientists tested 60 school lunchboxes for toxic lead. Afterward, the 

Consumer Product Safety Commission told the public it found, in 

these words, ‘‘no instances of hazardous levels.’’ The Associated 

Press filed a FOIA request and learned several boxes had more 

than 10 times the maximum acceptable level. 

You might have expected to read our report more than a year 

ago, when we filed our first expedited FOIA request. But our story 

was just published last month. It took us an entire year to get the 

documents. Apparently, the Commission still thinks the boxes are 

safe. They told us children do not use their lunchboxes in a way 

that exposes them to the lead found in the tests. Maybe they are 

right, but maybe they are not. 

We talked to expert researchers that told us the lead levels were 

cause for serious concern, and when the Food and Drug Administration saw the test results, they warned lunchbox manufacturers 

they could face penalties. One major store chain quietly pulled the 

boxes off its shelves nationwide. 

Evidently, reasonable people can disagree, and that is the point. 

Reasonable people can disagree, but only if they know. 

Why did it take a year for the Commission to respond to a relatively simple request that FOIA says it was supposed to answer 

in 20 working days? It took a year because FOIA imposes no penalty for ignoring deadlines. The OPEN Government Act legislation, 

introduced yesterday by Senators Leahy and Cornyn, includes real 

FOIA enforcement provisions. The Sunshine in Government Initiative urges enactment of the legislation this year. 

The predisposition to deny has grown steadily worse in recent 

years. Federal officials who used to provide information for the asking now say you have to file a time-consuming FOIA request. If the 

request is denied, administrative appeals are often no more than 

occasion for further broken deadlines and ritual denials. And the 

requester finally ends up with a choice between giving up or commencing litigation that can easily cost well into six figures. Even 

AP has to choose its fights carefully. 

Another problem with the law as it stands is that we can litigate 

a FOIA denial for years and still not get our legal fees reimbursed 

if an agency turns over the goods before a court actually orders it 

to do so. How many of your small business or private constituents 

just have to give up because they cannot afford to sue? 

There could easily be a third way. A strong FOIA ombudsman 

within the Federal Government could help requesters around some 

of the most unreasonable obstacles without forcing them to go to 

court. This is a legislative priority for our media coalition. 

By no means is the news from the FOIA front all bad. I can tell 

you FOIA success stories, too, which illustrate why FOIA is such 

a cornerstone of our democracy. Thanks to FOIA, AP last year was 

able to report for the first time the extent of deaths and injuries 

among private contract workers in Iraq. And FOIA requests were 

12

a crucial part of AP’s reporting which showed that highly publicized Federal fines against companies that break the law are increasingly being written down afterwards, sometimes by more than 

90 percent. 

It is a tribute to the professionalism and respect for the rule of 

law of so many agency FOIA officers that they respond correctly to 

thousands of requests each year. But their achievements are too 

often undermined by others who think obstructing information flow 

is a national policy. The Ashcroft memorandum advising agencies 

that the Justice Department was ready to back any plausible argument for denying a FOIA request continues to set the tone for access. 

When Government has trained itself to believe that the risks 

from openness are substantial while the risks from keeping secrets 

are negligible, you begin to get the kind of Government nobody 

wants—a Government that believes its job is to do the thinking for 

all of us. 

You get, for example, the Consumer Product Safety Commission 

that decides on its own, for all of us, that a little bit of toxic lead 

in a lunchbox is okay and the matter needs no further discussion. 

‘‘Further discussion’’ is the essence of a free society. We need a 

strong and effective Freedom of Information Act to make sure that 

discussion flourishes. 

We are grateful for this opportunity to appear before you today. 

The Sunshine in Government Initiative wants to work with you to 

deliver the Open Government Initiative legislation this year. 

Thank you, Senators. 

[The prepared statement of Mr. Curley appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Katherine Cary is an Assistant Attorney General with the Texas 

Office of the Attorney General. Like the coincidence of Ms. Haskell 

being from Vermont, we have the coincidence of Ms. Cary being 

from Texas. She served 6 years as Chief of the Open Records Division for that office. She studied at Hollins College in Roanoke, Virginia, received a B.A. from Texas A&M in 1987, and a J.D. degree 

at St. Mary’s University in 1990. And as Senator Cornyn has pointed out, she was honored with the James Madison Award in 2003 

by the Freedom of Information Foundation of Texas for her work 

to protect the public’s right to know. And while this is not a normal 

thing we do because the transcript of this will someday be in the 

Cary archives, I know you have several members of your family 

here. Would you just mention their names so they could be also in 

the record? 

STATEMENT OF KATHERINE CARY, GENERAL COUNSEL, 

TEXAS OFFICE OF THE ATTORNEY GENERAL, AUSTIN, TEXAS 

Ms. CARY. Thank you very much, Senator Leahy. I appreciate 

that. 

This is my father, Alan Minter; my mother, Patricia Minter; my 

son, Everett Cary, who helped me with my remarks today; and my 

daughter, Katie Cary. My husband is in court today in Texas. He 

is also a lawyer, and so he would send his greetings to the Senate 

via a Texas connection. 

13

Thank you for the opportunity to testify today. I appreciate it. As 

Senator Cornyn said, most people who know me well call me 

‘‘Missy.’’ My real name is Katherine Cary. I am the General Counsel of the Texas Attorney General’s Office, and I do appreciate the 

high honor of appearing before you today. 

First, on behalf of Attorney General Greg Abbott, let me convey 

his strong support for the bipartisan OPEN Government Act of 

2007. Attorney General Abbott, like Senator Cornyn before him, 

has a strong record on open government and believes that as stewards of the public trust, Government officials have a duty of transparency when governing. They both often quote Supreme Court 

Justice Louis D. Brandeis, who said, ‘‘Sunshine is the best disinfectant.’’

As the leading open government expert in the Office of the Attorney General, I work daily to apply, educate, and enforce one of the 

most proficient open government laws in the United States. As I 

have said before to this Committee, unfettered access to government is a principled—and an achievable—reality. But it takes the 

right mix—the right mix of legal authority and the right mix of vigilance. 

Texas is a big State. We have more than 2,500 governmental 

bodies that span 268,801 square miles. From El Paso to the Panhandle and from Texarkana to Brownsville, the Texas Public Information Act ensures that information is placed into the public’s 

hands every day without dispute. 

Under the Texas Public Information Act, just like the Federal 

Freedom of Information Act, information is supposed to be promptly released. Texas law defines this to mean as soon as possible, 

within a reasonable time, without delay. Any governmental body 

that wants to withhold information from the public must, within 10 

business days, seek a ruling from the Texas Attorney General’s Office. 

In Texas, a governmental body that fails to take that simple procedural step to keep information closed waives any required exceptions to disclosure unless the information is made confidential by 

law. It is this waiver provision that provides the meaningful consequences that prevent Government from benefiting from its own 

inaction. Under the Texas Public Information Act, if an entity disregards the law and fails to invoke the provisions that specifically 

protect certain categories from disclosure, it has forfeited its rights 

to use those exceptions. The OPEN Government Act would institute a very similar waiver provision. The Texas experience shows 

that striking this balance is fair and practical. Simply stated, it 

works. 

In 1999, with Senator Cornyn as Attorney General, governmental 

bodies in Texas sought roughly 4,000 rulings from the Texas Attorney General. Last year, we issued about 15,000 such rulings. This 

is staggering when you consider that these rulings are a mere fraction of the number of requests for information that are promptly 

fulfilled every single day. 

But what I have found is that education is vital. A noncompliance with open government laws often results from a misunderstanding of what the law requires rather than a true malicious intent. For this reason, our office asked the Texas Legislature to reVerDate 0ct 09 2002 15:19 Jun 13, 2007 Jkt 035801 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\35801.TXT SJUD1 PsN: CMORC
14

quire mandatory open government training for public officials in 

Texas. They agreed, requiring a course of training that must either 

be done by or approved by the Attorney General’s Office. We offer 

the training by free video or DVD that is available on the Attorney 

General’s Office website. To date, our office has issued completed 

training certificates to almost 40,000 people in Texas. 

In addition to open government training, our office provides an 

open government handbook, similar to the Federal handbook—

much smaller but similar—an extensive open government website, 

and an open government hotline that is toll-free staffed by attorneys who help clarify the law and make open government information readily available to any caller. This service includes updating 

callers on where a request for ruling is in the process. That probably sounds a little familiar to the OPEN Government Act that you 

proposed. It answers about 10,000 calls a year. This provides citizens with customer service, attention, and access that they deserve 

from their public servants. 

My office also handles citizen complaints. The Open Records Division’s attorneys attempt, with a 99-percent success rate, to mediate compliance with open records requirements. The OPEN Government Act would create a similar system that Texas has already 

demonstrated successfully. Resolving matters efficiently certainly 

underscores the usefulness of a dispute resolution function. 

We have learned that it only requires a few legal actions by the 

Attorney General for word to get out that we are serious about enforcing compliance. We have enforced compliance in several instances sounding very similar to those that were mentioned by Ms. 

Haskell from Vermont. It appears that the proposed Special Counsel will be in a comparable position to achieve positive results on 

the Federal level. 

Finally, Texas has a legal presumption that all information collected, assembled, or maintained by or for a governmental body by 

a third party is open to the public. Records kept by third parties 

on behalf of Texas governmental bodies remain accessible by request to the governmental body, as long as the governmental body 

enjoys a ‘‘right of access’’ to that information. 

Moreover, Texas law does not allow the Government to contract 

away agency access to public records. The OPEN Government Act 

would appropriately extend the availability of Federal Government 

records to non-governmental third parties. 

As Senator Cornyn said, the policy statement that introduces the 

Texas Public Information Act I believe is on point. I think it bears 

repeating. 

The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and 

what is not good for them to know. The people insist upon remaining informed so that they may retain control over the instruments 

they have created. 

The United States Supreme Court has held that the Freedom of 

Information Act’s ideals are analogous, stating: 

The basic purpose of FOIA is to ensure an informed citizenry, 

vital to the functioning of a democratic society, needed to check 

against corruption, and to hold the Governors accountable to the 

governed. 

15

Thank you for the privilege of appearing before you today. Thank 

you for recognizing my family, and thank you for helping to ensure 

that my children, who sit behind me, will live in a society where 

they are the Governors of the government. 

Thank you. 

[The prepared statement of Ms. Cary appears as a submission for 

the record.] 

Chairman LEAHY. Thank you, Ms. Cary. And I kind of whispered 

to Senator Cornyn, as I listened to the description of your Freedom 

of Information Act, no wonder he is so passionate about this. 

Let me also ask, does anybody else have family members here? 

I do not mean to—okay. 

Ms. FUCHS. My husband is here. 

Chairman LEAHY. There you go. Let me start with you. 

The National Security Archive is one of the most active users of 

FOIA. So I am interested in your views about the Bush administration’s efforts to address the problems of lax FOIA enforcement, and 

the President did issue Executive Order 13392 asking agencies to 

submit FOIA improvement plans by June of 2006. Both Senator 

Cornyn and I applauded that effort. 

We find now, more than a year after the President’s Executive 

order, that Americans who seek information from FOIA, unless I 

am misinformed, remain less likely to obtain it. The Coalition of 

Journalists for Open Government has found that the percentage of 

FOIA requesters obtain at least some of the information that they 

request from the Government fell by 31 percent last year. 

Do you think that the President’s Executive order alone is 

enough to reduce the almost 200,000 backlog FOIA requests? 

Ms. FUCHS. Thank you for the question. I believe that Executive 

Order 13392 was a useful exercise, and it did get agencies to look 

at their FOIA programs, and that was valuable. And for the agencies that took it seriously, they have good ideas and good goals that 

they would like to make. They are somewhat hampered by lack of 

leadership at some of those agencies and by lack of resources, but 

they are making an effort. 

Some agencies, however, we found the Executive Order improvements plans showed, had made no effort in the past. For example, 

the VA had never even updated its regulations after the 1996 E–

FOIA amendments. So those things were shown by that. 

But I think that without Congress acting, the agencies are not 

on their own going to accomplish it. 

Chairman LEAHY. You also have, do you not, the Executive order 

could be changed by the next Executive, whereas the legislation is 

the legislation. 

Ms. FUCHS. Right. And the legislation has strong teeth in it that 

will hopefully change the culture at agencies. 

Chairman LEAHY. That is also why we have been trying to do 

this before a new President takes office, so that it is clear that it 

applies. 

Ms. Haskell, one, I am delighted to have somebody from one of 

Vermont’s best newspapers here. 

Ms. HASKELL. Oh. 

16

Chairman LEAHY. I mean that. In your view, what is the biggest 

hurdle that reporters encounter when they try to use the Federal 

FOIA law to get information? 

Ms. HASKELL. Our biggest hurdles are that people do not know 

whether or not they are allowed to give documents. 

Chairman LEAHY. You mean the people being requested do not 

know whether they are allowed. 

Ms. HASKELL. That is right. And we started the law, and 

Vermont started out with 36 exemptions. We have 207 and counting. They do not know what to do, and so they immediately say no 

before they will say yes, and then you have to convince them that—

it is like you are guilty until you are proven innocent. 

The other problem is that you cannot—there is no enforcement to the law at all. The Burlington Free Press spent about $12,000 

trying to get the hazing documents. Never saw a dime of it. 

Chairman LEAHY. That is our State’s largest newspaper, I should 

note. 

Ms. HASKELL. Right. There was, you know, a town board in 

Barre that was fined for illegally holding an open meeting. They 

did not get fined, nor did they get the misdemeanor charges. 

Chairman LEAHY. Do you think that if we passed the OPEN Government Act, some of the things we have here, do you think that 

that might help in Vermont? Has it been your experience that 

sometimes Vermont will follow these Federal laws or model after 

these Federal laws? 

Ms. HASKELL. That is my experience, and sometimes we lead the 

way, too. But—

Chairman LEAHY. I know that. 

Ms. HASKELL. But, yes, I think that the—it has to come from the 

top that, you know, we are an open government, because everybody 

sees it being hidden from the top on down. 

Chairman LEAHY. And in that question—and I assure you I am 

not trying to—I try never to tell the Vermont Legislature in the 

vain hope that they would return the compliment. 

[Laughter.] 

Chairman LEAHY. They usually do not. Mr. Curley, you represent 

the Sunshine in Government Initiative. We all know some of the 

things that FOIA has found, contaminated ground turkey in plants 

in Minnesota, health risks with the birth control patch, unreported 

asbestos-related illnesses and so on. 

Have members of the Sunshine in Government Coalition experienced a delay in reporting important information relating to public 

health and safety because of excessive delays in processing FOIA 

requests? I am talking about public health and safety now, not 

malfeasance in Government. Public health and safety. 

Mr. CURLEY. Absolutely, Mr. Chairman. I think the moist dramatic example was a story that was published about February 1st. 

AP, USA Today, and a number of other organizations had filed 

FOIA requests and found out that there were 122 levees across the 

country, from Maryland to California, that could be overwhelmed 

by heavy flooding. A story that hit the AP wire yesterday was that 

the pumps in New Orleans that had been put in trying to make 

the deadline before the hurricane season last summer were defective and many have to be overhauled or replaced. 

17

So this is an area of ongoing and, I think, incredible public interest concern. 

Chairman LEAHY. My time is up, and if you will allow an editorial comment, you should not have had to drag that out. Our 

Government should have been trumpeting it and saying, ‘‘Look, we 

have got a problem.’’ I mean, if Katrina taught us anything, it is 

that. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. 

I want to start with the proposition, Ms. Cary, that you talked 

about in terms of elected officials, Government officials, perhaps 

not being well informed of what their responsibilities are under the 

law, and then move down to Ms. Fuchs to talk about attorneys’ fees 

and the importance of that provision in this legislation. 

But it strikes me, Ms. Cary, that, you know, most of the so-called 

Government officials are citizens who for a period of time may offer 

themselves to serve in public office, whether a school board or city 

council or something like that. They are not necessarily professional politicians, nor are they lawyers, necessarily, and aware of 

what their obligations are under the law. 

But can you expound just briefly on why you believe it is so important that, whatever we do, we provide the means to educate 

agency officials about their responsibilities and how that can avoid 

some of the problems? 

Ms. CARY. Of course, Senator. What I found after I got started 

working in this area is really that most governmental entities are 

made up of just regular people. Like you said, they are volunteer 

school board members; they are sometimes elected sheriffs. But 

there are a lot of public officials, and most often the law is complicated. As Ms. Haskell says, the same in Texas, every year the 

Texas Public Information Act when the legislature is in session is 

amended—new requirements, requirements change. And they need 

a go-to source. They need to know what they can go to and where 

they can go to find accurate advice about what is open and what 

is closed, because the human response is always to say it is closed, 

because there are criminal penalties, at least in the Texas Public 

Information Act, for releasing information that is confidential by 

law, for example, information that is private or information that is 

related to security. 

And so there are, you know, important balancing acts that must 

go on, but most of the time, public officials just simply do not know 

what the law is that day and, exactly, there are some malicious 

public officials in the world. But that is the clear minority. 

And so what we have set out to try to do is to put out an excellent website so that people can read at their own leisure what the 

law is and what the requirements are, stated from the source, the 

Attorney General’s Office. We have this training video which gives 

the basics so that even if they are out to hire local counsel or legal 

counsel, they understand the basic requirements and know whether the advice that they are getting is accurate at some basic level. 

We also find that the hotline is an excellent resource. Senator 

Cornyn. Let me ask Mr. Curley about that issue. Mr. Curley, this 

bill attempts to introduce informal dispute resolution mechanisms 

that would allow an expeditious resolution of the kind of conflict 

18

Ms. Cary mentioned where perhaps there are privacy laws that 

would prohibit the release of certain information, and so the custodian of the records is in some doubt. Do you think the working 

press would find it useful to have a person or a number they could 

call and go to to have an expeditious resolution of those disputes 

and perhaps get the information in a more timely way? 

Mr. CURLEY. Senator, it would be helpful, but I think your point 

is right on target, that this really has to work for the people. And 

the press has to be a part of the people. When the press gets in 

trouble—and it deserves to get in trouble when it tries to do things 

on its own and separate itself from the public’s right and the 

public’s right to know. The underlying provisions here, to put in an 

ombudsman would benefit the people. And when you look at thirdparty requests, only 6 percent of the third-party requests are by 

the press. A third are by citizens or citizens groups about public 

interest matters. 

So this whole area is about helping in what is increasingly becoming a sophisticated information-gathering operation, getting 

people some relief, and also, if we can put in some tracking provisions. You know, if Brown can do it, Red, White, and Blue should, 

too. 

Senator CORNYN. Well said. Your point about this not being legislation ‘‘for the press’’ I think is an important one. This is for all 

of us as American citizens. This is about our right to know, and 

I think we need to recognize the transformation in both the technology and information gathering and in publication. 

I remember, for example, the story in Thomas Friedman’s book, 

‘‘The World Is Flat,’’ about the blogger who confronts Bob Schieffer 

outside of a morning news show and where he has been interviewed and says, ‘‘Can I ask you a few questions?’’ He asks him 

about national or international matters. He says, ‘‘May I take your 

picture?’’ Pulls out his telephone camera, takes his picture, and 

goes back and uploads that on his website. I mean, I think that individual needs to get access to information, too, as do individual 

citizens. 

Finally—and my time is running out—has run out, but let me 

ask you, Ms. Fuchs, this issue of attorneys’ fees, I suspect we are 

going to get significant pushback on this issue of recovery of attorneys’ fees. But I just want to ask whether you are familiar with 

the example of the Pacific Fisheries versus IRS case, a FOIA request in 2004 to the IRS. The requester had to file a lawsuit, and 

then months later, the IRS responds to the lawsuit with a claim 

that all responsive documents are exempt. But then a year later, 

on the eve of the dispositive motion deadline, the IRS produced 313 

pages of responsive documents. Under the prevailing attorneys’ 

fees decisions by the United States Supreme Court, the Buchanan 

case, they would not be entitled to any attorneys’ fees even though 

they had gone through litigation to get something that they should 

have gotten in the first place. 

Could you just briefly address the importance of that provision? 

Ms. FUCHS. Right. Well, what is particularly wonderful or interesting about that case is that it shows the Court itself was so irritated at how the Government handled the FOIA request that it 

found that the Government’s delay was censurable and possibly 

19

subject to sanctions. And what happened in that case was the 

Court ordered the Government to show cause why it should not be 

sanctioned, and the parties ultimately settled and they paid the attorneys’ fees. 

What is unique about FOIA cases and what this example shows 

is that they are easy to moot out, because what we are asking for 

is documents. And so we can litigate, we can file summary judgment motions, as long as the Government gives us the documents 

before the Court issues its order. Then the case is mooted out, and 

we have no recourse. 

And, frankly, it is very expensive to bring this litigation, I mean, at least $10,000, $15,000 for an individual. I am sure the AP’s 

cases, which have resulted in really remarkable releases, have cost 

even more than that. 

Senator CORNYN. Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Feingold? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Chairman Leahy, for holding this 

hearing on an issue of vital importance. The Freedom of Information Act is an essential piece of legislation for our democracy. It enables researchers, journalists and interested citizens to obtain executive branch documents at a reasonable cost. 

At the same time, the Act protects certain documents from disclosure to shield national security, privacy, trade secrets and other 

privileges. A government that permits citizens access to records 

that document its day-to-day decisions is one that fulfills the promise of democracy in a particularly significant way. Congress should 

regularly review and update how the law that makes such access 

possible is working. 

When the executive branch knows its actions are subject to public scrutiny, it has an added incentive to act in the public interest. 

And I fear that this important value of government openness has 

taken a back seat in the years since the terrible events of September 11th. Protecting our citizens from terrorist attacks must be 

the top priority of government. But we can do that while still showing the proper respect for the public’s right to know. 

Unfortunately, that has not been this administration’s attitude. 

From the excessive secrecy surrounding the post-9/11 detainees to 

the lack of information about implementation of the controversial 

provisions of the USA PATRIOT Act, to instructions to Federal 

agencies issued by former Attorney General Ashcroft that tightened 

the standards for granting a FOIA request, this administration has 

too often tried to operate behind a veil of secrecy. 

That is why I intend to cosponsor this bill that Senators Leahy 

and Cornyn introduced yesterday to strengthen the Freedom of Information Act. Thank you again, Mr. Chairman, for being such a 

tremendous leader on this issue. I am proud to join with you in 

working to empower individual citizens to obtain the information 

they need to hold their Government accountable. In so doing, we 

can help ensure that our democracy remains strong and vibrant. 

And I also want to talk a little bit about the attorneys’ fees that 

20

Senator Cornyn mentioned, but let me first thank him for his work 

on this bill, and in particular, for his comments about the attorneys’ fees. 

I have proposed legislation to correct the problem across the 

whole Government because the attorneys’ fees statutes are affected 

by the decision that you discussed, and I would very much like to 

work with the Senator from Texas on this issue if he agrees this 

is a problem. I want to continue to make a record here on this attorneys’ fees issue. 

Mr. Curley, you mentioned in your testimony the problem of not 

being able to have legal fees reimbursed in the FOIA litigation because an agency will comply with a FOIA request right before the 

court orders it to do so, as was just mentioned. As I understand 

it, this problem stems from the fact that under a Supreme Court 

interpretation of a fee-shifting provision similar to the one contained in the FOIA, you can only get the attorneys’ fees if there is 

a final court order or settlement of your case, so that even if the 

Government has resisted providing the requested documents, 

forced you to file suit, dragged out the litigation for quite some 

time at significant expense in terms of attorneys’ fees and other 

costs, it can avoid paying attorneys’ fees by releasing the documents at the last minute before the court actually rules. 

Sir, could you provide examples of an agency engaging in these 

tactics to avoid reimbursing attorneys’ fees? 

Mr. CURLEY. Well, the case that has gotten the most attention 

is our efforts to get information about what is taking place at 

Guantanamo Bay. We have spent well into the six figures. We have 

won every one of those rulings. 

In the case that is coming down, the Department of Defense is 

willing to give us $11,000. Obviously, we are going to go back and 

have to sue them again to get a higher and fairer number. 

Now, we have some resources that other do not, but if every situation comes down is a threat of six figures, it just is not right. The 

McClatchy News Service, then Knight Ridder, spent six figures’ 

worth of money chasing information on the Veterans Administration. So if you get into anything that is at all complicated, Senator, 

it clearly is a six-figure proposition. 

Senator FEINGOLD. Is this practice common enough to actually 

deter attorneys from taking these cases? And what is the overall 

effect on those attorneys who are bringing these cases and on the 

general availability of legal representation to challenge FOIA 

delays or denials? 

Mr. CURLEY. Well, as you know, it is a tough time for media, and 

you can only have so many battles these days. There are a lot of 

cutbacks and a lot of revenue going in different directions. So every 

news organization has to figure out how much it is willing to spend 

in this area. 

Right now everyone, of course, is still willing to stand up on the 

major issues and make a case and write the checks. There are a 

lot of great representatives out there trying to help us, legally and 

otherwise, in these areas. But I do fear, given the funding issues 

facing the media, where we are going. It is increasingly harder and 

more expensive to do good investigative reporting. Senator Specter 

21

was right. The growth of Government has been exponential, and 

media have not kept pace with the ability to provide oversight. 

Senator FEINGOLD. Ms. Fuchs, did you want to add anything to 

this issue? 

Ms. FUCHS. Well, you had asked about examples of agencies 

changing their minds right before having a court do anything. We 

have a case involving our news media status at the National Security Archive where in 1990 the D.C. Circuit ruled that we are representative of the news media. In a case against the CIA, the district court adopted that same ruling. For 15 years, the CIA and 

other agencies treated us as representatives of the news media. 

Suddenly, in October 2005, the CIA stopped doing that and refused to treat us as representatives of the news media, taking the 

position that they can determine what is newsworthy—not the requester but the CIA. Imagine that. 

So I met with them. I laid out all my legal arguments. Nothing 

changed. Finally, I filed a lawsuit. Nothing changed. Finally, we 

filed for summary judgment. That night, the night after we filed for 

summary judgment, at 6:30 on a Friday, I got a letter from the CIA 

changing their mind. Suddenly we are representatives of the news 

media for those 42 requests. 

Now, that is an example of a situation where—I mean, their next 

argument was our whole case is moot, and I am sure after that 

they are going to say no attorneys’ fees. I had to sue to get them 

to agree to that. 

Senator FEINGOLD. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Cardin? 

Senator CARDIN. Senator Leahy and Senator Cornyn, thank you 

very much for your leadership on this issue. We appreciate the fact 

that we have legislation before us that I think is very important 

for us to move forward on the FOIA laws. 

Let me just mention one area that may not be apparent to why 

it is important that we modernize our FOIA laws. I have the opportunity to chair the Senate Helsinki Commission, and we use that 

as an opportunity to raise internationally issues that are important 

on human rights, security, and economics and the environment. 

Many times, the United States delegation is requesting information from other countries to try to understand what they are doing 

in different areas, documents, et cetera. And on more than one occasion it has come back to me that, well, you know, in the United 

States you would have a hard time getting that information. And 

we are not in a strong position internationally for openness and 

transparency in Government because of the way that we have operated our request for information. 

I am interested as to whether there are other countries that 

could give us a better model as to how FOIA requests should be 

handled or how they use technology or how they use public information to make it easier, that perhaps we could pattern our reforms based upon the experiences of some of our allied countries. 

Are there some countries that are better than others in getting information to you? 

22

Ms. FUCHS. If I may respond, I guess I would say that I think 

the United States is a remarkable example of a country where 

things are quite open, and that is part of the reason that our country is such a strong democracy. And, in fact, in our experience, because the United States gathers so much information, we have 

managed at the National Security Archive to use records we have 

obtained from U.S. agencies to help advance human rights causes 

abroad as well. 

Having said that, our law is 40 years old, and there are some 

problems with it. In some countries, there actually are penalties for 

delay. In fact, in India, the civil servant who does not respond 

within the time period is fined six rupees, or something like that. 

So there are penalties in other countries. 

And another example of something that we could look at as a 

model from other countries is Mexico where they have an agency 

which acts sort of as an ombudsman—it is an information commissioner—and which has been really effective because it has a budget 

to do that work. It posts its decisions online so people can see 

them. And having a strong agency like that to serve the function 

of the ombudsman would be something that would be outstanding. 

Ms. CARY. Senator, if I could respond, I had the opportunity to 

go to Mexico several times and assist them with the formation of 

that law and was very involved in the formation of the committee. 

I enjoyed talking to the citizens of Mexico about looking at their 

different laws. They talked to many different governmental entities. Interestingly, they hold the United States and different States 

in the United States up as a good example. But they formulated 

this very interesting and intriguing idea, which is, instead of just 

one ombudsman, they actually have a governmental committee—

since they have concerns about the honesty of their core system, is 

how it was explained by Mexicans to me—that they have great 

faith in and that they do a lot of education, they try to do a lot 

of things on the Internet, and they try to put a lot of faith in this 

sort of free resources, which is this Committee that will mediate 

disputes and really dive into the issues. 

And so I think it is a really neat system, and I think the ombudsman that is proposed in this bill also could create an office that 

would be very similar, work in a similar manner, to really provide 

up-front assistance. 

It is hard to get your request answered in a vacuum, and so if 

particular requests that are precise can be mediated with the players, you know, on-site in real time, I think that makes all the difference in the world. 

Senator CARDIN. It is clear to me that we could use technology 

much more effectively, the agencies could use technology much 

more effectively than they are doing, and your survey points that 

out pretty clearly. 

I do not want to let this opportunity pass without you commenting, if you want, on the branch of Government that we serve 

in, the Congressional branch, as to whether there is need for 

change in the way that we make information available. Now, both 

the House and Senate have passed legislation for more transparency generally, but I do believe that we should set examples, 

23

the legislative branch of Government, and we should be subject to 

the same types of standards. 

This is your opportunity. 

Mr. CURLEY. Senator, that is a wonderful, wonderful opportunity. 

FOIA does not apply to the Congress of the United States, but beyond that, let me say thank God for the Hill. Obviously, we get a 

lot of stories up here. 

Senator CARDIN. I will pass that on to them. 

Ms. FUCHS. If I may add, I mean, one thing that I think that 

Congress certainly could look at is Congressional Research Service 

reports, which are not publicly available, although, in fact, many 

are made available to the public. But they contain a wealth of interesting information and analysis that I think members of the 

public do find interesting. 

Senator CARDIN. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. 

I just want to explore some of the comments, and you will forgive 

me, Ms. Haskell or Ms. Fuchs. I cannot remember which one of you 

made this characterization, but please jump right in, that we not 

treat the public as the enemy but, rather, as the customer. I 

thought that was helpful because I do believe that we must have 

a culture change in Washington about how we regard the American 

people. And let me just give you one example, and I think, Mr. Curley, you alluded to this a little bit. 

If I am not mistaken, a huge number of the open government or 

the FOIA requests being made of Federal agencies consist of veterans requesting their own record from the Veterans Administration, which just strikes me as very odd. I mean, I do not understand how an individual cannot call, write, fax, e-mail a Government agency and say, ‘‘I would like my own record,’’ rather than 

have to submit a FOIA request like a third-party requester would. 

Do you have any comments or any observations about that, Mr. 

Curley? And then, Ms. Fuchs and Ms. Haskell, I would be interested in your thoughts. 

Ms. FUCHS. I would be happy to start off. Senator, I think that 

what you are saying about the public being customer is a very, very 

apt observation. Senator Leahy wrote an article that was published 

in the Administrative Law Review in 1997 which talked about the 

remarkable information resource that has been created by the U.S. 

Government, paid for at taxpayer expense. 

With respect to something like the VA, what happens is Privacy 

Act requests, requests by someone for their own information, have 

been counted now as FOIA requests. The problem with that is that 

information does not have to be reviewed. It is released. It is their 

own information. 

For example, when my father passed away, I asked for his military discharge records. I submitted a FOIA request. I got his military discharge records. We should be able to do that without it 

have anything to do with the FOIA system. 

The way it works now, all of the data for Privacy Act and FOIA 

requests are aggregated together. It makes it difficult to really examine what is happening with the FOIA system. Your legislation, 

24

I believe, includes a provision that would disaggregate those statistics, and if that is the case, I think it would be very helpful for 

helping the Congress be in a position to focus on FOIA and let the 

Privacy Act requests function on their own smoothly. 

Senator CORNYN. There is a Statement of Administration Policy 

on H.R. 1309, which is not our bill, but it is a House bill, the Freedom of Information Act Amendments of 2007. I just want to give 

you an opportunityto respond—maybe, Mr. Curley, you would be 

the appropriate one for me to ask—but the administration says it 

would be premature and counterproductive to the goals of increasing timeliness or improving customer service to amend FOIA before 

agencies have been given a sufficient time to implement the FOIA 

improvements that the President directed them to develop, put in 

place, monitor, and report during fiscal year 2006 and 2007. 

Do you agree with that, or do you disagree? 

Mr. CURLEY. Strenuously disagree, as you might imagine. We are 

all pleased that the President recognized the importance of freedom 

of information, that there was at least an acknowledgment of this 

area as an important cornerstone of the efforts to keep Government 

credible and open. But there was no teeth, and it was an Executive 

order. As Senator Leahy says, they can come and go. But the underlying trend is the trend, and the trend is quite ugly. 

The E–FOIA is less than 10 percent effective. The regular FOIA 

are seeing increasing delays. Buck passing is Washington agencies’ 

best game, and we are seeing people become more and more sophisticated at it as time goes on. 

There is no provision to enforce FOIA right now. That is the 

problem. The new provisions in the legislation that you and Senator Leahy proposed give some incentives for the agencies to respond to FOIA in a more timely way. It is night and day better and 

necessary. 

Senator CORNYN. I know Senator Leahy has indicated we have 

a roll call vote that started. Let me just ask this last question for 

my part. 

Mr. Curley, this SAP, Statement of Administration Policy, says, 

‘‘The administration strongly opposes commencing the 20-day time 

limit for processing FOIA requests on the date that the request is 

‘first received by the agency’ and preventing the collection of search 

fees if the timeline is not met.’’

The concern, I guess, is if a citizen submits a FOIA request and 

they do not get it in the right box or to the right agency, the administration wants to wait until it gets to the right place. Do you 

have a view about that? 

Mr. CURLEY. If we give anybody any more excuse or reason for 

delay, you are going to see that the request will take 2 years, not 

1 year. 

I think what we have to do is face the facts. They are not responding properly. They need to put in place systems that work. 

There are places in this town where you can get effective response. 

You get people with the right attitude working with the public from 

the get-go. But in too many places, it is part of a larger game to 

delay. 

Senator CORNYN. Thank you very much. 

Thank you, Mr. Chairman. 

25

Chairman LEAHY. I see the 5-minute light is going on, and this 

is a cloture vote. So, Ms. Fuchs, I am going to ask you to elaborate 

for the record on this. But is it your position that the Federal agencies are not complying with E–FOIA? 

Ms. FUCHS. Oh, it is absolutely my position after we looked at 

149 websites from agencies and components that they are not complying. Only one in five have required records, and that means the 

records that show what their policies and positions are. 

Chairman LEAHY. Please, if you want to elaborate on that, because obviously more and more people go online today, and this 

would be the best thing if it was working. 

Ms. FUCHS. Well, and especially—

Chairman LEAHY. And, Mr. Curley, would it be your position 

that an ombudsman, an effective ombudsman as an alternative to 

litigation might be helpful? 

Mr. CURLEY. Absolutely. 

Chairman LEAHY. And, Mr. Curley, about a year ago during Sunshine Week, I wrote an op-ed piece—I do not know if you had a 

chance to read it or not—on FOIA. Would you agree or disagree 

with a conclusion I reached that in the last 6 years it has been 

more and more difficult to get information under FOIA? 

Mr. CURLEY. Absolutely, and there are many facts to support 

that, sir. 

Chairman LEAHY. Thank you. 

I have been asked to give you a copy of a book written by a 

former AP reporter—I will not elaborate further on it, but you may 

want to glance at it—from Vermont. If you want to add a book review for the record, feel free. 

Mr. CURLEY. All news is local and understood. 

Chairman LEAHY. Well, you know, it is especially important in 

Vermont where the Associated Press—not only in Vermont, but in 

many States—has become the overriding wire service. And we have 

to rely on you. 

But I will close with this, and I have said it over and over again. 

We Americans are not here to serve the Government. It is the 

other way around. The Government is here to serve us. And Government, no matter what administration, will always tell you everything they are doing that they are proud of. 

I want to make sure we know those things where they make mistakes so that we can correct them—not to play ‘‘gotcha,’’ but just 

so we can correct them. And I think FOIA can be one of the greatest tools Americans have, but it can be awful if we do not use it. 

So, with that, we will stand in recess, and, again, I thank the 

Senator from Texas for all his help. 

[Whereupon, at 11:25 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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