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22–471 PDF 2005

S. HRG. 109–69

OPENNESS IN GOVERNMENT AND FREEDOM OF

INFORMATION: EXAMINING THE OPEN GOVERNMENT ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

MARCH 15, 2005

Serial No. J–109–7

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

JON KYL, Arizona, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JOHN CORNYN, Texas 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

DIANNE FEINSTEIN, California 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

RUSSELL D. FEINGOLD, Wisconsin 

RICHARD J. DURBIN, Illinois 

STEPHEN HIGGINS, Majority Chief Counsel 

STEVEN CASH, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1

prepared statement .......................................................................................... 64

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 67

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 5

prepared statement .......................................................................................... 90

WITNESSES 

Cary, Katherine Minter, Chief, Open Records Division, Office of the Texas 

Attorney General, Austin, Texas ........................................................................ 9

Fuchs, Meredith, General Counsel, National Security Archive, George Washington University, Washington, D.C. .................................................................. 17

Graves, Lisa, Senior Counsel for Legislative Strategy, American Civil Liberties Union, Washington, D.C. .......................................................................... 15

Mears, Walter, former Washington Bureau Chief and Executive Editor, Associated Press, Chapel Hill, North Carolina ......................................................... 11

Susman, Thomas M., Ropes and Gray LLP, Washington, D.C. ........................... 20

Tapscott, Mark, Director, Center for Media and Public Policy, The Heritage 

Foundation, Washington, D.C. ............................................................................ 13

QUESTIONS AND ANSWERS 

Responses of Meredith Fuchs to questions submitted by Senator Cornyn ......... 32

Responses of Meredith Fuchs to questions submitted by Senator Leahy ........... 43

Responses of Katherine Minter Cary to questions submitted by Senator 

Cornyn ................................................................................................................... 50

Response of Walter Mears to a question submitted by Senator Cornyn ............. 52

Responses of Thomas M. Susman to questions submitted by Senator Cornyn .. 53

SUBMISSIONS FOR THE RECORD 

Cary, Katherine Minter, Chief, Open Records Division, Office of the Texas 

Attorney General, Austin, Texas, prepared statement ..................................... 57

Fuchs, Meredith, General Counsel, National Security Archive, George Washington University, Washington, D.C., prepared statement .............................. 69

Graves, Lisa, Senior Counsel for Legislative Strategy, American Civil Liberties Union, Washington, D.C., prepared statement ....................................... 83

Lechowicz, Lisa, Chief Executive Officer, Health Data Management, Inc., 

Wayne, Pennsylvania, statement ........................................................................ 93

Mears, Walter, former Washington Bureau Chief and Executive Editor, Associated Press, Chapel Hill, North Carolina, prepared statement ...................... 97

Morley, Jefferson, journalist, Washington, D.C., letter ........................................ 104

Susman, Thomas M., Ropes and Gray LLP, Washington, D.C., prepared statement ...................................................................................................................... 109

Tapscott, Mark, Director, Center for Media and Public Policy, The Heritage 

Foundation, Washington, D.C., prepared statement ......................................... 116

(1)

OPENNESS IN GOVERNMENT AND FREEDOM 

OF INFORMATION: EXAMINING THE OPEN 

GOVERNMENT ACT OF 2005

TUESDAY, MARCH 15, 2005

UNITED STATES SENATE, 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY, AND

HOMELAND SECURITY OF THE COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

Room SD–226, Dirksen Senate Office Building, Hon. John Cornyn, 

presiding. 

Present: Senators Cornyn, Kyl, and Leahy. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. This hearing of the Senate Subcommittee on 

Terrorism, Technology, and Homeland Security shall come to order. 

I want to start out by thanking Chairman Specter for scheduling 

today’s hearing, and particularly Senators Kyl and Feinstein for 

giving Senator Leahy and I the opportunity to, I guess, hijack their 

Subcommittee to talk about the subject of open government. 

Today’s hearing is entitled, ‘‘Openness in Government and Freedom of Information: Examining the OPEN Government Act of 

2005.’’ It is the third in a series of bipartisan events in recent 

weeks in which Senator Leahy and I have joined forces. On February 16, shortly before the President’s Day recess in February, 

Senator Leahy and I went to the Senate floor together to introduce 

the OPEN Government Act, legislation that promotes accountability, accessibility, and openness in the Federal Government, 

principally by strengthening and enhancing the Federal law commonly known as the Freedom of Information Act, or FOIA. I am 

pleased to note that the OPEN Government Act is also cosponsored 

by Senator Isakson of Georgia, and other Senators, I am sure, will 

be joining in the coming days and weeks, as they become more and 

more aware of what it is we are doing here. 

Last Thursday, Senator Leahy and I joined forces again to introduce the Faster FOIA Act, the Faster Freedom of Information Act 

of 2005. I have asked Chairman Specter to place the Faster FOIA 

Act on the Committee’s markup calendar for this Thursday in the 

hope of enacting this legislation as soon as possible. It shouldn’t be 

controversial. It ought to be an easy thing to do, and hopefully will 

give us more information about the problems with faster implementation of FOIA. 

2

There are, unfortunately, many issues in the Senate Judiciary 

Committee that are divisive. This is not one of them. So it is especially gratifying to be able to work so closely with Senator Leahy 

on an issue that is so important and fundamental to our nation as 

openness in government. I want to express my appreciation not 

only to the Senator, but also his staff for all their hard work on 

these issues of mutual interest and national interest, and I would 

like to thank and commend Senator Leahy—recognize, I am a relative newcomer to the United States Senate, but he has been working on these issues for a long time, and I want to commend his decades-long commitment to freedom of information. 

Today is a particularly fitting day to examine these issues. This 

past Sunday, an extraordinary coalition of print, radio, television, 

and online media associations and outlets began the nation’s first 

ever Sunshine Week. And tomorrow is National Freedom of Information Day, celebrated every year at a national conference held at 

the Freedom Forum’s World Center in Arlington, Virginia, on 

James Madison’s birthday, quite appropriately. 

Now, I know when we talk about freedom of information and the 

Freedom of Information Act and how that is implemented in the 

Federal Government that some people have ambiguous reactions 

and feelings to the invocation of FOIA. It reminds me of a story I 

saw recently where a person called the FBI and said, ‘‘I want to 

institute a FOIA request to see if you have a file on me. Do you 

have a file on me at the FBI?’’ to which the agent on the other end 

of the line responded, ‘‘We do now.’’

[Laughter.] 

Senator CORNYN. Well, freedom of information and openness in 

government are among the most fundamental founding principles 

of our government. The Declaration of Independence itself makes 

clear that our inalienable rights to life, liberty, and the pursuit of 

happiness may only be secured where governments are instituted 

among men deriving their just powers from the consent of the governed. And James Madison, the father of our Constitution, famously wrote that consent of the governed means informed consent, that a people who mean to be their own governors must arm 

themselves with the power that knowledge gives. 

In my previous assignment as Attorney General of Texas, I was 

responsible for enforcing Texas’s open government laws, and I have 

always been proud of the fact that my State has one of the strongest and most robust freedom of information laws in the country. I 

look forward to bringing some of that sunshine here to Washington. 

But the truth is, many States have very robust freedom of information laws, and it reminds me of Louis Brandeis’s comment about 

the States being the laboratories of democracy, and I think we can 

continue to look toward those State experiences in looking at how 

we can improve the Freedom of Information Act here in Washington. 

After all, it is unfortunate that, as with too many of our ideals 

and aspirations, that we fall short of reaching our goals. Of course, 

this is a bipartisan problem and it requires a bipartisan solution. 

As Senator Leahy and I have both noted on occasion, openness in 

government is not a Republican or Democrat issue. Any party in 

power—it is just human nature—any party in power is always reVerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC
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luctant to share information out of an understandable, albeit ultimately unpersuasive, fear of arming one’s critics and enemies. 

Whatever our differences may be today on various policy controversies, we should all agree that these policy differences deserve as 

full and complete a debate before the American people as possible. 

I also think it is appropriate to note it was a President from 

Texas, Lyndon Baines Johnson, who signed the Freedom of Information Act into law on July 4, 1966. Again, addressing the sort of 

ambiguous connotation of, invocation of the Freedom of Information 

Act, I read with interest the comments of Bill Moyers, LBJ’s press 

secretary, who said, quote, ‘‘what few people knew at the time is 

that LBJ had to be dragged kicking and screaming to the signing 

ceremony. He hated the very idea of the Freedom of Information 

Act, hated the thought of journalists rummaging in government 

closets, hated them challenging the official view of reality.’’

Well, it has been nearly a decade since Congress has approved 

major reforms to that Freedom of Information Act signed in 1966, 

which LBJ ultimately did sign. Moreover, the Senate Judiciary 

Committee has not held a hearing to examine this law since 1992, 

so it is long overdue. I hope that today’s hearing will prove to be 

an important first step toward strengthening those open government laws and toward reinforcing our national commitment to freedom of information. 

Today’s hearing will provide a forum for discussing the Faster 

Freedom of Information Act, which Senator Leahy and I have introduced just last week—perfect timing—which will establish an advisory commission of experts and government officials to study what 

changes in Federal law and Federal policy are needed to ensure 

more effective and timely compliance with the Freedom of Information Act. 

Today’s hearing also provides the opportunity to examine the 

OPEN Government Act, which I alluded to a moment ago. This legislation contains important Congressional findings to reiterate and 

reinforce our belief that the Freedom of Information Act establishes 

a presumption of openness and that our government is based not 

on the need to know, but upon the fundamental right to know. 

In addition, the Act contains over a dozen substantive provisions 

designed to achieve four important objectives: First, to strengthen 

the Freedom of Information Act and to close loopholes; second, to 

help FOIA requestors obtain timely responses to their requests; 

third, to ensure that agencies have strong incentives to comply in 

a timely fashion; and fourth, to provide FOIA officials with all of 

the tools that they need to ensure that our government remains 

open and accessible. 

Specifically, the legislation would make clear that the Freedom 

of Information Act applies even when agency recordkeeping is 

outsourced. It would require an open government impact statement 

to ensure that any new FOIA exception adopted by Congress be explicit. It provides annual reporting on the usage of the new disclosure exemption for critical infrastructure information and strengthens and expands access to FOIA fee waivers for all media. It ensures accurate reporting of FOIA agency performance by distinguishing between first-person requests for personal information 

and other more burdensome types of requests. 

4

The Act would also help FOIA requestors obtain timely responses 

by establishing a new FOIA hotline service to enable requestors to 

track the status of their requests. It would create a new FOIA ombudsman, located within the Administrative Conference of the 

United States, to review agency FOIA compliance and provide alternatives to litigation. And, it would authorize reasonable recovery 

of attorneys’ fees when litigation is inevitable. 

This legislation would restore meaningful deadlines to agency action and restore—excuse me, impose real consequences on Federal 

agencies for missing statutory deadlines. It would enhance provisions in current law which authorize disciplinary action against 

government officials who arbitrarily and capriciously deny disclosure that have not been used in over 30 years. And, it will help 

identify agencies plagued by excessive delay. 

Finally, the bill will help improve personnel policies for FOIA officials, examine the need for FOIA awareness training for Federal 

employees, and determine the appropriate funding levels needed to 

ensure agency FOIA compliance. 

The OPEN Government Act is not just pro-openness, pro-accountability, pro-accessibility, it is also pro-Internet. It requires 

government agencies to establish a hotline to enable citizens to 

track their FOIA requests, including Internet tracking. And, it 

grants the same privileged FOIA fee status currently enjoyed by 

traditional media outlets to bloggers and others who publish reports on the Internet. 

As I have said, the OPEN Government Act is a product of 

months of extensive discussions between Senator Leahy’s office and 

mine, as well as numerous outside advocacy groups and watchdog 

groups. I am pleased that this bill is supported by a broad coalition 

of open government advocates and organizations across the ideological spectrum. It is really quite amazing, if you think about it, from 

the American Civil Liberties Union and the People for the American Way to the Free Congress Foundation’s Center for Privacy and 

Technology Policy, the Heritage Foundation Center for Media and 

Public Policy, to people like my former colleague on the Supreme 

Court and the current Attorney General of Texas who is here with 

us today, Greg Abbott, and Greg, thank you for being here and 

showing your support and allowing Missy Cary to come testify here 

today. 

Without objection, the letters of support that we have received 

from these numerous organizations and others will be made part 

of the record. 

I am also pleased about recent positive comments that this legislation has received from the Department of Justice. I certainly understand that no administration is ever excited about the idea of 

Congress increasing its administrative burdens and I look forward 

to any technical comments and expressions of concern that the administration may choose to provide. But, I do appreciate the Justice Department’s own website that notes that this legislation, and 

I quote, ‘‘holds the possibility of leading to significant improvements in the Freedom of Information Act,’’ close quote. As Attorney 

General Alberto Gonzales and I discussed during his confirmation 

hearing in January, we plan to work together on ways to strengthVerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC
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en the Freedom of Information Act, and I was pleased that he gave 

me that commitment during his confirmation hearing. 

So I look forward to working with General Gonzales, with Senator Leahy, and our other colleagues in the Senate and the House 

to moving this legislation through the process. 

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

And with that, I would like to turn the floor over to Senator 

Leahy for any opening statement he may have. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. I am delighted to be 

working with you on this subject. Also, I was just over with Senator Specter at the Judicial Conference at the Supreme Court and 

there, I was very pleased it was chaired this year, as it always is, 

by the Chief Justice, who was there. I told him I was in Vermont 

until late last night and I told him the number of Vermonters who 

came up to me and to wish him well. He is a part-time resident 

of our State, the most famous resident we have in our State. I commented that, too, what I thought was a great act of personal courage when he swore in the President for his second inauguration, 

and I think the signal it sent to the country and the rest of the 

world of our three branches of government, the continuity of government, was very good. 

I was glad to see the weather is very nice since it says ‘‘Sunshine 

Week’’ on these things. This past week, in addition to the NCAA 

ski championship held in Vermont and a number of NCAA basketball conference tournaments around the country, most Americans 

saw in their Parade magazine and their Sunday newspaper that 

sunshine is a great disinfectant to the abuses of power. The weekly 

magazine reminded us of a story it ran in January 2004 about a 

Massachusetts couple, and they relied on State FOIA laws to expose a town’s plan to reopen a dormant and potentially polluted 

landfill. It spotlights the power that individuals have to show what 

their government is doing. 

That is why I am delighted to join with the Senator from Texas. 

He and I talked about this on the floor at some length. The fact 

the two of us have joined, I hope it sends a very strong signal, this 

is not a partisan issue, because no matter who the administration 

is, Republican or Democratic, we will always get the press releases 

when everything is going well. You have to fight tooth and nail to 

find out when things are not going well, and that is why we want 

to do something on FOIA. 

There has not been significant legislation regarding FOIA since 

1996, when I was able to author the Electronic Freedom of Information Act Amendments, joined by, again in a bipartisan way, to 

an update for the Internet age. 

I fought against the rolling back of citizens’ rights in this regard. 

I expressed concern in 2002 over an agreement in the Homeland 

Security legislation that was contrary to those efforts, and this is 

why I think it is so important Senator Cornyn and I are working 

together on this to demonstrate that it is not a partisan issue. It 

is a good government issue. I am going to keep on working on not 

6

only the two that we put in together, but a third bill to restore the 

FOIA Act, which will be introduced today. 

You know, the enactment of FOIA was a watershed moment for 

democracy. This is one of those areas that can unite liberals and 

conservatives. We recognize a dangerous trend toward over-classification. On March 3, 2005, J. William Leonard, the Director of Information Security Oversight, testified before a House Committee 

the number of classification decisions has increased from nine million in 2001 to 16 million in 2004, and the cost alone in 2003 was 

$7 billion to classify them. It is almost getting, if a story is in one 

of our major newspapers about something that went wrong in the 

government, somebody is going to mark the newspaper ‘‘top secret’’ 

to try and classify it. We have to have open government. 

I mentioned that Parade magazine story about Linda and Mike 

Raymond in Woburn, Massachusetts. In the 1980s, after rates of 

leukemia spiked upward, the local industries were sued for polluting the area’s water. Four years ago, the Raymonds discovered 

the city’s landfill that has been dormant for 15 years was bustling 

with truck traffic. They contacted the local officials who 

stonewalled her. They relied on a State FOIA law to get answers, 

putting the light on what is going on. 

That is why a law can be done at the States. I am delighted to 

see one of your successors is the Attorney General from Texas here, 

and we are glad to have you here, Attorney General. That is why 

when Senator Cornyn and I introduced S. 394, the OPEN Government Act, it is just common sense things. 

One thing it does is talk about agency delay. The oldest requests 

we know of date back to the late 1980s. They were filed before the 

collapse of the Soviet Union. A lot has gone on in the world since 

then. 

The oldest we know of was a FOIA request at the FBI for information on the Bureau’s activities at the University of California. It 

was filed in November 1987. You had a bunch of court cases, five 

rulings that the FBI had violated FOIA by withholding records, 

and then after you had this 2002 article in the San Francisco 

Chronicle and inquiries from Senator Feinstein, the FBI acknowledged that, whoops, we are withholding some records. Well, how 

much? A few. How much? Seventeen-thousand pages, and apparently 15,000 still out today. Now, that is an extreme case, but we 

have introduced legislation to speed these things up. 

We have, with all good intention, in the Homeland Security law 

a provision that allows big polluters or other offenders to hide mistakes from public view. They just stamp it ‘‘critical infrastructure 

information.’’ We have got to do better than that. We have got to 

make sure that people know what is going on. 

FOIA is a cornerstone of our democracy. It guarantees a free flow 

of information. When you get—I mentioned two people, Mr. Chairman, are going to be here. One is Walter Mears. I have known Mr. 

Mears for many, many years. His hair was dark and I had hair 

when we first met. He joined the Associated Press when he was a 

student at Middlebury College in Vermont, became the AP’s first 

correspondent at the State House in Montpelier. He came down 

here to Washington, won the Pulitzer Prize for his coverage of the 

1976 Presidential campaign. He has covered 11 of those for the AP. 

7

And Lisa Graves, who has recently served as my Chief Nominations Counsel, but she has worked in all three branches of government. One of the first cases she worked on after graduating from 

law school was to help Terry Anderson in his battle to obtain information under FOIA about the decision of the U.S. Government related to his captivity in Lebanon. They had a lengthy fight and he 

finally got documents, page after page after page, that were totally 

blacked out except for his name and the page number, a big help 

there. They finally—President Clinton in 1995 issued Executive 

Order 12958, which led to an unprecedented effort to declassify 

millions of those pages. 

We are usually stronger when we know what is going on. So, Mr. 

Chairman, I can’t applaud you enough. I joke that when I say all 

these nice things about the Chairman that there is going to be a 

recall petition for him back in Texas—

[Laughter.] 

Senator LEAHY. —but what he is doing is very reflective of what 

we think about in Vermont with our open government and our 

town meetings. Thank you. 

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

Senator CORNYN. Thank you very much, Senator Leahy. Again, 

I can’t say enough nice things about you and your longstanding 

commitment to this issue. It makes so much sense to you and me. 

Surely, it has got to make sense to all of our colleagues. Hopefully, 

this legislation will pass out of here at a speed usually unknown 

in the U.S. Senate, which is not known for its speed, but we will 

keep pushing. 

We are pleased to have a distinguished panel here before us 

today. Ordinarily, when we choose witnesses for panels, each side 

of the aisle picks its own witnesses, but that is not the case today. 

Again, in keeping with the spirit in which we are here, I am particularly pleased that today’s witnesses were selected jointly by 

Senator Leahy and I, consistent with the bipartisan spirit on this 

issue. 

I will introduce the panel and ask each of them to give brief 

opening statements and then we will ask questions. 

The first witness is Katherine Cary—her friends call her Missy—

starting here on my left. She is the Assistant Attorney General of 

Texas and Chief of the Open Records Division for the State of 

Texas, and I had the pleasure of working with her when I served 

as Texas’s Attorney General. My successor, General Abbott, had 

the good sense to keep her on in light of the great work that she 

is doing and I commend him and her for their continued good work. 

Because the OPEN Government Act borrows from some core concepts that we already have in place in State law, I thought it would 

be helpful to have one of our top legal experts on this subject here 

with us today. But most of all, Missy, I thought it would be nice 

just to see you again, so welcome here. 

We are honored to have Walter R. Mears here, and Senator 

Leahy has already spoken eloquently about him. But, he is a 

former Washington Bureau Chief and former Executive Editor for 

the Associated Press and the author of Deadlines Past: Forty Years 

of Presidential Campaigning, a Reporter’s Story. And, of course, as 

8

we heard, he has been honored with receiving the Pulitzer Prize, 

and we are certainly glad to have you here, Mr. Mears, to talk 

today about the importance of this issue to the news media, although I am always eager to say that this is not just an issue for 

the media. This is about the American citizens’ ability to get information that they need in order to arm themselves to be good citizens. But we look forward to your testimony here, your statement 

here soon. 

Mark Tapscott is the Director of the Center for Media and Public 

Policy at the Heritage Foundation. Mr. Tapscott has written extensively on the freedom of information and media issues. Before joining the Heritage Foundation in 1999, he served as a newspaper 

editor and reporter. He also worked in the Reagan administration 

and as Communications Director to the immediate former Chairman of the Senate Judiciary Committee, Senator Orrin Hatch. 

Sitting next to our Heritage Foundation representative today is 

Lisa Graves, who you have already heard something about, Senior 

Counsel for Legislative Strategy for the American Civil Liberties 

Union. She is quite familiar, as you have heard, with members of 

this Committee, having served with Senator Leahy as his Chief 

Nominations Counsel. She has also served previously as Deputy 

Assistant Attorney General in the Justice Department, so she is intimately familiar with the burdens imposed by the Freedom of Information Act on Federal agencies. Ms. Graves, welcome back to 

Dirksen Room 226. 

Meredith Fuchs is the General Counsel of the National Security 

Archive at George Washington University. In that capacity, she has 

become one of the top FOIA experts this city has to offer. She has 

previously served as a partner in the prestigious Washington law 

firm of Wiley, Rein and Fielding, and I am pleased to say we have 

worked together not just on the OPEN Government Act, but on 

other FOIA-related issues, as well. And I must say, the National 

Security Archive has one of the best websites and one of the most 

informative websites on this issue that I have seen, so I am glad 

you are here with us. 

Finally, we are glad to have Thomas M. Susman with us here 

today. He is a partner at the law firm of Ropes and Gray LLP. He 

is also the former Chief Counsel of the Senate Subcommittee on 

Administrative Practice and Procedure and former General Counsel 

of the Senate Judiciary Committee under Senator Kennedy. He is 

widely recognized as one of the top FOIA experts in Washington, 

and I am grateful for all of the advice that he has provided my office in helping to draft this legislation and working with Senator 

Leahy. 

Unfortunately—this is the bad news—we have to ask each of you 

to keep your opening statement to about five minutes to start with 

to ensure we have plenty of time to hear from everybody, and then 

Senator Leahy and other Senators who arrive here will be able to 

ask you to amplify on those during the Q&A. 

At this time, Ms. Cary, I would be glad to hear from you first. 

And if you will just remember to push that button, and the light 

indicates that your microphone is on so we can all hear you. Thank 

you. 

9

STATEMENT OF KATHERINE MINTER CARY, CHIEF, OPEN 

RECORDS DIVISION, OFFICE OF THE TEXAS ATTORNEY GENERAL, AUSTIN, TEXAS 

Ms. CARY. Thank you. Thank you, Senator Cornyn, thank you, 

Senator Leahy, for letting me appear before you today. For the 

record, my name is Katherine Minter Cary and I am the Division 

Chief of the Open Records Division at the Texas Office of Attorney 

General. Again, it is an honor to appear before you today and convey to you what I do every day in Texas. 

First, let me convey for the record Texas Attorney General Greg 

Abbott’s strong support for the bipartisan OPEN Government Act. 

As you can tell, General Abbott is here today to offer you that support. 

As I said, I have the pleasure and the responsibility of working 

on a daily basis to apply, educate, and enforce one of the strongest, 

most effective public information acts in the United States of America. I want to state unequivocally to you that unfettered access to 

government is an achievable reality. Texas has over 2,500 governmental bodies scattered throughout the State, but every single day, 

I oversee a process that succeeds in getting thousands of pieces of 

information into the public’s hands without controversy. At last 

check, from the statistics I got before I left the office, two million 

open records requests are fulfilled every year in Texas. 

Under the Texas Public Information Act, as under FOIA, requested information is supposed to be given out promptly. Texas 

law defines this to mean as soon as possible and without delay. 

Any governmental body that wants to withhold records from the 

public must, within ten days, seek a ruling from the Texas Attorney General’s Office, specifically from my division, the Open 

Records Division. 

In Texas, a governmental body that fails to take those simple required procedural steps to keep information closed has waived any 

exceptions to disclosure unless another provision of Texas law explicitly makes the information confidential. This waiver provision, 

above all else, has provided meaningful consequences to prevent 

government from benefitting from its own inaction. Under Texas 

law, if a governmental body—either State, local, county—disregards the law and fails to invoke these provisions that specifically protect certain categories of information from disclosure, it 

forfeits its right to use those disclosure exceptions. 

The OPEN Government Act would institute a very similar waiver provision and it attempts to strike the careful balance as not to 

negatively affect third parties’ rights or violate strict confidentiality. The Texas experience shows that finding this balance is realistic, fair, and workable. 

Our pro-openness system of disclosure has boasted great success, 

and without dire consequences, for 32 years through innumerable 

high-profile events, including the Space Shuttle Columbia disaster, 

the suicide of an Enron executive, the death of 19 immigrants in 

a heated tractor trailer in South Texas, and several very high-profile front page murder trials. 

In 1999, governmental bodies in Texas sought roughly 4,000 rulings from you, the Attorney General Cornyn. Last year, my division 

10

handled 11,000 such requests. These requests show an increase in 

compliance that is directly related to outreach and enforcement. 

Often, non-compliance results from a simple lack of understanding rather than malicious intent. For this reason, the Texas 

Attorney General’s Office has worked aggressively to prevent violations of the Texas Public Information Act. 

We offer training. We offer videos, handbooks. We have, most importantly, an open government hotline. It is toll-free in the State 

of Texas and is charged with helping to clarify the law and make 

open government information readily available to any caller. This 

service includes, as the OPEN Government Act would, an update 

on where a request is in the system. The Texas open government 

hotline answers about 10,000 calls a year. There is no question 

that the addition of a similar system under the proposed OPEN 

Government Act provides citizens customer service, attention, and 

access they deserve from their public servants. Our hotline has 

been a resounding success, from the both the perspective of requestors and from governmental entities. 

My office also has attorneys that handle citizens’ complaints as 

well as respond to their questions about the law. These attorneys 

attempt, with a 99 percent success rate, to mediate compliance 

with open records regulations. The OPEN Government Act would 

create a similar system, and Texas’s demonstrated success in resolving such matters underscores the utility of such a dispute resolution function. 

Our experience has shown that it requires a few actions by the 

Attorney General for word to get out that we are serious about enforcing compliance. I believe that the Office of Special Counsel provisions as proposed in your OPEN Government Act will experience 

the same positive results on the Federal level. 

Finally, with regard to outsourcing, Texas has a legal presumption that all information collected or assembled or maintained by 

or for a governmental body by a third party are open to the public. 

The OPEN Government Act would also extend the availability of 

government records held by non-governmental parties. Records 

kept on behalf of Texas governmental bodies remain accessible by 

request as long as the governmental body has a right of access to 

the information. Texas law does not allow the government to contract away access to records held by its agents. 

I personally believe this portion of the policy statement that introduces the Texas Public Information Act is instructive. The people, in delegating their authority, do not give the 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 remaining informed so that they may maintain control over the instruments 

that they have created. 

My experience and our State’s experience with openness, its commitment to that people have a right to know, not just a need to 

know, has been a resounding success for 32 years. As Attorney 

General Abbott noted in his recent letter to you supporting the 

OPEN Government Act, open government leads inextricably to 

good government. Openness and accountability, not secrecy and 

concealment, is what keeps our democracy strong and enduring. 

11

Thank you again, Senator Cornyn, for the privilege of appearing 

before you today. 

Senator CORNYN. Thank you, Ms. Cary. I appreciate your being 

here. 

Ms. CARY. Thank you, sir. 

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

the record.] 

Senator CORNYN. Mr. Mears, we would be glad to hear from you. 

STATEMENT OF WALTER MEARS, FORMER WASHINGTON BUREAU CHIEF AND EXECUTIVE EDITOR, ASSOCIATED PRESS, 

CHAPEL HILL, NORTH CAROLINA 

Mr. MEARS. Thank you. I appreciate the opportunity to be here 

today in familiar territory. I spent more than 40 years as an Associated Press reporter, editor, and Washington Bureau Chief, and so 

I am no stranger to Congressional hearing rooms, but this is my 

first experience on this side of the table. With that, another disclaimer. I am not an expert on the legal aspects and the fine print 

of freedom of information law. I hope that you will allow me to interpret my franchise broadly so that I can speak about what I 

know best, which is the crucial importance of the free flow of information about government to the people. 

Too many people in government have an instinct or acquire an 

instinct to limit that flow because they think that things work better without people they regard as nosy outsiders prying into what 

they regard as their business. It is not their business. It is all of 

our business. That is what a free democratic government is all 

about, and you can’t have one unless people know what is going on 

behind government doors. I believe that as a reporter and I believe 

it today as a retired American watching government from a distance. 

President Bush spoke to Russia’s President Putin at the Kremlin 

about the need for free press in a democracy. What was true at the 

Kremlin also is true in Washington. The free flow of information 

is vital to a free press and to a free people. 

There is a difficult balance to be kept in this, especially since 

September 11 brought home to us all the menace of terror in our 

midst. No reporter I know would demand or publish anything that 

would serve the purposes of a terrorist. The problem in times like 

these is to judge what would or would not weaken America against 

terrorism. 

Tom Curley, the President of the Associated Press, observed that 

the United States was attacked in large part because of the freedoms it cherishes, and Tom said that the strongest statement we 

can make to an enemy is to uphold those values. They would be 

upheld by the OPEN Government Act of 2005. 

Knowing that you will hear from people far more expert than I 

on the detailed provisions of the bill, I would like to offer some 

comments about the findings that preface it, the first of them being 

that the informed consent of the voters, and thus the governed, is 

crucial to our system of self-government. That was the mission that 

guided me through my career as a political reporter, from the State 

House in Vermont to the Capitol to the Presidential campaigns I 

covered for the AP. 

12

The bill also would have Congress find, and this is a quote, ‘‘the 

American people firmly believe that our system of government 

must itself be governed by a presumption of openness.’’ I wish that 

an act of Congress could make that so. In my experience, many—

too many—people do not believe that at all and are willing to let 

the government determine what we, and therefore they, ought to 

know. 

But the freer the flow of information, the better the job we do 

of delivering it, the more likely we can meet the standard on which 

the bill quotes Justice Hugo Black. ‘‘The effective functioning of a 

free government like ours depends largely on the force of informed 

public opinion. This calls for the widest possible understanding of 

the quality of government service rendered by elected and appointed officials or employees.’’

The Freedom of Information Act gets straight to that point. We 

use it to get data on the quality of government service. In a perfect 

world, that would be an aim shared by those who cover government 

and those who run it, and sometimes it is. The information flows 

because the people who control it realize that it belongs to the people. Too frequently, it is not, sometimes for valid reasons of security and privacy, on which you will hear no argument from us, but 

more often, it happens because when people get in the government, 

they tend to get proprietary and protective. 

As an AP veteran, I take pride in objectivity. We are concerned 

what is happening now, what is happening during this administration, and we should be, but I do not limit my observations to the 

Bush years. This is not new business. 

I remember writing a story that angered Lyndon Johnson when 

he was President. He wasn’t satisfied with the way the PR people 

in his executive branch were getting out his chosen message, so he 

called in their supervisors and he told them that if they didn’t do 

better, he would replace every one of them with a high school senior from Johnson City, Texas. The White House wouldn’t comment 

on my story, but as soon as it hit the wire, they flatly denied it. 

It just wasn’t so. And immediately after that, they set about trying 

to find out who leaked it to me. 

While restrictions on information have tightened in this administration, I believe that whoever had been in office, regardless of 

party, when those terrorists destroyed the World Trade towers, the 

administration would have erred on the side of security. That 

makes this legislation especially vital in a difficult time. There is 

a need to reinforce the public’s need to know. 

It was encouraging to see that Attorney General Gonzales has 

told you that he will examine Justice Department policies and 

practices under FOI. It will be more encouraging should he amend 

the restrictive line set by his predecessor in the memo that essentially flipped the policy from favoring disclosure to one in which the 

presumption was that the Justice Department would defend any 

decision to withhold information. 

As I said, there is a valid need for secrecy in government operations, but the presumption should be in favor of openness, and 

much of the information pried loose by pressure of FOI action has 

nothing to do with security. For example, the AP found that the 

NIH, National Institutes of Health, researchers were collecting royVerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC
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alties on drugs and devices they were testing on patients who did 

not know their financial interest in the product. The practice ended 

under a new policy announced immediately after the story hit the 

wire. 

The New York Daily News found that the Federal courthouse in 

lower Manhattan had maintenance and cleaning costs double those 

at State court buildings a block away and that in 1997, it cost 

$84,812 to polish the brass at the entrances to the building. 

Along with those FOI success stories, there are too many episodes of information blocked by delays and by agencies bent on secrecy. One remarkable example, Terry Anderson has been mentioned, the former AP man held hostage for seven years in Lebanon. When he was writing his book, he filed an FOI request for 

information about his captivity and he says that he was told he 

couldn’t have everything he was seeking because of the privacy 

rights of his kidnappers. 

The OPEN Government Act you are considering will plug some 

holes and repair some problems in the FOI Act, and for that, it 

should be approved. But I think beyond the specific steps, the message behind this measure is even more important because its enactment would once again declare that the public has the right to 

obtain information from Federal agencies and not to have it withheld in favor of secrecy as opposed to disclosure. 

I think this hearing and a full discussion of FOI in Congress will 

serve that mission well. As you have mentioned, as you begin this 

legislative work, we in the news media are undertaking a project 

entitled the Sunshine in Government Initiative with a similar mission. What you are trying to do by law, we are trying to do by example and with our reporting. 

We newspeople are the highest-profile advocates and users of the 

Freedom of Information Act, but it is not only a tool for reporters. 

Increasingly, requests do not come from us but from people like 

veterans and retirees trying to get information about their government benefits, from citizens looking for information about what is 

happening in their government. That is worth emphasizing, because it points out that access to information is best for everyone. 

We need to find ways to keep that flow of information open, not 

just for the press, but for all Americans, and to keep it a topic of 

national concern. So I thank you for what you are doing in that 

cause and for inviting me to join in that effort. 

Thank you, Mr. Mears. 

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

for the record.] 

Senator CORNYN. Mr. Tapscott? 

STATEMENT OF MARK TAPSCOTT, DIRECTOR, CENTER FOR 

MEDIA AND PUBLIC POLICY, THE HERITAGE FOUNDATION, 

WASHINGTON, D.C. 

Mr. TAPSCOTT. Thank you, Senator. It is a pleasure and an honor 

to be here to testify today about the OPEN Government Act of 

2005. I have submitted my statement for the record, so I am just 

going to summarize. 

Senator CORNYN. That would be fine. All your written statements 

will be made part of the record, without objection. 

14

Mr. TAPSCOTT. Among Secretary of Defense Donald Rumsfeld’s 

probably lesser-known marks of distinction in his career was an 

important role that he played back in 1966 as one of the cosponsors 

of the Freedom of Information Act, and he made a remark during 

the floor debate on that Act that I think has a great deal of relevance to us today and to what you and Senator Leahy are doing. 

He said, and I quote, ‘‘This legislation was initially opposed by 

a number of agencies and departments, but following the hearings 

and issuance of the carefully prepared report, which clarifies legislative intent, much of the opposition seems to have subsided. There 

still remains, however, some opposition on the part of a few government administrators who resist any change in the routine of government. They are familiar with the inadequacies of the present 

law and over the years have learned how to take advantage of its 

vague phrases,’’ unquote. 

I think what Rumsfeld described in 1966 is a problem that we 

are dealing with still today, and in one sense, we shouldn’t be surprised by it because we have a career workforce precisely to insulate them from improper, inappropriate political influences. But 

one of the problems that comes along with that insulation is precisely the delays and other problems that we are dealing with here 

today in freedom of information. 

And I say that—I should point out that I am the fourth generation in my family to have worked in the government. My father 

was a civil servant in Oklahoma and my grandfather and greatgrandfather were mail carriers in East Texas, Senator, so I have 

a great deal of respect for government employees. But they are not 

exempt from human nature, and unfortunately, when it comes to 

the Freedom of Information Act, the path of least resistance too 

often results in a misadministration of the Act. 

I believe this process accounts for most of the problems that we 

have, and this was illustrated by a survey in 2003 by the National 

Security Archive, which I think is one of the best surveys that has 

been done in this area. They found, among other things, that, 

quote, ‘‘the agency contact information on the web was often inaccurate, response times largely failed to meet the statutory standard, only a few agencies performed thorough searches, including email and meeting notes, and the lack of central accountability at 

the agencies resulted in lost requests and inability to track 

progress.’’ They summarized the results of that survey by saying 

that the system is a system in, quote, ‘‘disarray.’’ I think that was 

a very accurate description. 

Having spent nearly two decades in this town as an ink-stained 

wretch in the journalism world and having filed more FOI requests 

than I care to remember over the years, I wasn’t surprised by these 

results. When you ask a typical journalist, and I am sure that my 

colleague, Walter Mears, will agree, why they don’t use the FOI 

more frequently, the reply will invariably be something along the 

lines of, well, it is going to take too long, they won’t give me what 

I need and what I ask for anyway, and we will just have to court 

and that will be a lot of expense and my editor will say, what is 

the point? 

I think the OPEN Government Act addresses all of the major 

problems that have been spotlighted over the years by people on 

15

this panel and elsewhere. I am not going to go into detail on why 

I think it is so effective. I would point out, however, that I think 

it is especially encouraging that you have decided to make real consequences for failing to administer the Act in an appropriate way 

and the establishment of an ombudsman to act as a neutral arbiter, if you will, in disputes between requestors and agencies. Those 

are the two most important accomplishments that could be obtained by this bill. 

It is also my hope that those members of Congress who consider 

themselves to be of a conservative persuasion will pay particular 

attention to this Act, to this bill, because it can be an effective resource for restoring our government to its appropriate size and 

functions. Sunshine is the best disinfectant, not only in the physical world, but also in combatting things like waste and fraud in 

government, and I hope that my fellow conservatives in Congress 

will pay very close attention to that fact. 

We are, indeed, fighting a global war on terrorism. It is a war 

that puts unusual demands on the FOI system. But conservatives 

and liberals alike should always remember that an ever-expansive, 

ever-intrusive government is ultimately antithetical to the preservation and expansion of individual liberty and democratic accountability in public affairs. 

Having said that, Senator, I commend you and Senator Leahy 

and I hope that this ends in a great success. 

Senator CORNYN. Thank you very much for that opening statement. 

[The prepared statement of Mr. Tapscott appears as a submission for the record.] 

Senator CORNYN. Ms. Graves, we would be glad to hear from you. 

STATEMENT OF LISA GRAVES, SENIOR COUNSEL FOR LEGISLATIVE STRATEGY, AMERICAN CIVIL LIBERTIES UNION, 

WASHINGTON, D.C. 

Ms. GRAVES. Good morning, Chairman Cornyn. Thank you for 

the invitation to testify today before the Subcommittee on Terrorism, Technology, and Homeland Security on behalf of the American Civil Liberties Union. We are very pleased to testify in support of your bill, the OPEN Government Act, S. 394, which was introduced last month by both you and Senator Leahy, who have 

been leaders in open government policies in Texas and nationally. 

This bill makes agency compliance with the Freedom of Information Act a priority and not an afterthought, and for that, we commend you. It supports accountable, democratic government by finally giving teeth to the deadlines set by Congress. 

Second, it will help bring FOIA into the 21st century by applying 

FOIA’s rules to government contractors in this era of outsourcing 

and also by leveling the playing field for independent reporters and 

publishers in the Internet age. 

Third, it protects incentives for the enforcement of FOIA when 

a litigant is a catalyst for change and for the disclosure of information that the public is entitled to. 

And finally, fourth, it emphasizes that the core purpose of FOIA 

is disclosure and not secrecy. 

16

The ACLU has experienced lengthy delays in the handling of 

some of its FOIA requests. For example, in October 2003, the 

ACLU filed a FOIA request for information about detainees held 

overseas by the United States, and then we filed a lawsuit in June 

of 2004 asking that the government comply with the terms of 

FOIA. In August of last year, a Federal court ordered the government to disclose documents responsive to that request. As a result 

of those disclosures, the public has learned about executive branch 

policy decisions about detainees, individuals kept from inspection 

by the Red Cross, as well as information about the treatment of 

those detainees. 

The underlying disclosures raise very troubling issues, but that 

is not the purpose of my testimony today. The fact of disclosure, 

even as a result of court order, demonstrates the continuing vitality 

of the democratic principles of an open society and the central importance of FOIA in our country. 

The OPEN Government Act takes important steps toward keeping the promises made by FOIA. S. 294 improves FOIA and government openness not by necessarily making more records subject to 

disclosure or by eliminating FOIA exemptions, but by helping ensure that agencies follow the law and disclose information that the 

Freedom of Information Act requires them to disclose. It is a very 

good beginning. 

Finally, I would like to note that in the wake of 9/11, there has 

been an epidemic of over-classification. However, this over-classification is not something new, as Terry Anderson’s case in the Clinton administration and so many others have shown. Senator 

Cornyn, you recently commented on the problem of over-classification in your article in the LBJ Journal of Public Affairs. You noted 

that the Honorable Thomas Kean, the Chair of the 9/11 Commission, had stated that in reviewing the documents, the important 

documents that the Commission reviewed for its report, threefourths of what he saw was classified and shouldn’t have been. 

Government secrecy can be an enemy of an open society and democracy, but, of course, this does not mean that every piece of information the government has can or should be made open to the 

public. There are limits, many of which the ACLU supports, to protect other important national and individual interests. But we as 

a people must continue to resist the culture of secrecy when it unnecessarily permeates our government, no matter which party is in 

power. When it comes to information about how the government is 

using its vast powers, ignorance is definitely not bliss. 

The ACLU supports S. 394 because this much-needed bill will 

help buck the growing trend of hiding government action from public scrutiny. We commend you, Senator Cornyn and Senator Leahy, 

for introducing the OPEN Government Act and we urge members 

to join you in support of this good government measure which will 

strengthen our nation’s democracy. Thank you. 

Senator CORNYN. Thank you very much. 

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

for the record.] 

Senator CORNYN. Ms. Fuchs, we are glad to hear from you. 

17

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

Ms. FUCHS. Thank you, Senator Cornyn. Mr. Chairman, thank 

you for the opportunity to speak with you today about the reforms 

that would be enacted by the OPEN Government Act of 2005. I 

wish to commend the cosponsors of this bill, Senator Cornyn and 

Senator Leahy. Each of you has an established record as a defender 

of open government and we appreciate the effort you are making 

to make our government more responsive and accountable to the 

citizens. 

I have extensive experience in the Freedom of Information Act. 

The National Security Archive, of which I am the General Counsel, 

is one of the most active and successful nonprofit users of the FOIA 

in this country. Our work has resulted in more than six million 

pages of documents that otherwise would be secret today being 

available to the public, and we have conducted two studies of Federal Government administration of the FOIA and most of my remarks today are based on what we learned doing those audits. 

I want to start by talking about why FOIA is important. In a 

world in which terrorism is commonplace and where the people are 

caught in a balance of terror, our soldiers are fighting the war to 

promote democratic ideals, an informed citizenry is the most important weapon that the country has, an informed citizenry that will 

support and be loyal to its government. 

Our FOIA law is one of the best mechanisms for empowering the 

public to participate in governance. The fact of the matter is that 

there is a reflex of secrecy in the government right now. People are 

afraid to open up the proceedings of government to the public. But 

in many cases, there is a need for the public to know what is happening, to know what the risks are that they face. 

Certainly national security is a very real and important concern, 

but it is not the only concern and there is often times when it can 

be impacted by public activity. Just last summer, Congressman 

Shays of Connecticut gave a striking example of the paradox that 

is caused by secrecy and against the public interest in disclosure. 

He talked about a 1991 Department of Defense Inspector General 

report that was classified that showed that 40 percent of the gas 

masks used by our military leaked. He couldn’t talk about the report because it was classified. He couldn’t tell his constituents who 

were soldiers who fought in the Gulf War what happened and why 

they might have Gulf War illnesses. 

Six years later, finally, the report was declassified and people 

could learn what was the cause of their Gulf War illnesses. The 

rest is history, so to speak. Those are the kinds of things that the 

public needs to know and that the government needs to acknowledge so that instead of hiding these secrets, we can confront the 

problems and fix them. 

Indeed, this is the lesson of the inquiries concerning the September 11 attacks on the United States. It was most directly addressed by Eleanor Hill, the Staff Director of the joint House-Senate Intelligence Committee investigation, who said, quote, ‘‘The 

record suggests that prior to September 11, the U.S. intelligence 

and law enforcement communities were fighting a war against terVerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC
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rorism largely without the benefit of what some would call their 

most potent weapon in that effort, an alert and committed American public.’’

This conclusion is echoed in the report of the 9/11 Commission, 

which includes only one finding that the attacks on the United 

States could have been prevented. As you will see in the graphic 

that I included and appended to my testimony, the 9/11 Commission specifically talks about the interrogation of one of the hijackers’ paymasters, Ramzi Binalshibh. Binalshibh commented that if 

the organizers, particularly Khalid Sheikh Mohammed, had known 

that the so-called 20th hijacker, Zacarias Moussaoui, had been arrested at his Minnesota flight school on immigration charges, then 

bin Laden and Mohammed would have called off the 9/11 attacks. 

The Commission’s wording is important here. Only publicity could 

have derailed the attacks. 

We see many examples of how the public is empowered by information released under FOIA. I have appended to my testimony a 

list of 21st century FOIA successes, a list of news articles that resulted from information disclosed under FOIA. 

It is interesting. I remember when a foreign official visited my 

office on the eve of his own country adopting a FOIA law and 

asked, what happens if it discloses something bad that the government did, and my answer to him, and my answer to you, is that 

is exactly what FOIA is about. The American public deserve a government that can acknowledge its mistakes, can correct those mistakes, and do better in the future. 

A key part to empowering the public, however, is giving them information in sufficient time for them to do something about it, and 

one of the things that we found in the audit of Federal agencies 

that we conducted is that there is a persistent problem of backlog 

and delay in FOIA. Your bill goes very far to address that and we 

are very grateful that you have taken into consideration some of 

the lessons that we found in our audit. 

You all know the old adage that justice delayed is justice denied. 

Well, we have found in our own FOIA requests to Federal agencies 

that when there is a long delay in the release of documents, the 

documents often disappear. They may be destroyed. They may be 

lost. And yes, we can sue, but really, we would rather not have to 

sue to get documents. 

How much worse is it for reporters who are handling breaking 

news who really need the documents quickly? What about communities that have health and safety problems in their community 

and they want to protect their children? What about the advocacy 

groups that are telling the people about the risks in the water or 

of mercury in fish? This information needs to get out to people 

quickly. 

The OPEN Government Act of 2005 will go far to motivate agencies to process FOIA requests and to process them in a timely fashion. Despite there being 3.6 million FOIA requests reported in fiscal year 2003, there are not that many lawsuits, and so I commend 

you in particular for the provision that would impose a penalty 

when there are lawsuits—when in lawsuits it is found that the government has not met a statutory standard of clear and convincing 

evidence for good failure to comply with time limits. 

19

That penalty provision may come under attack for fear that it is 

going to result in troubling disclosures, but in fact, it is not going 

to result in disclosures of the information that is most important 

to be kept protected. It is not going to result in national security 

information, privacy information, or information that Congress has 

mandated be secret, such as intelligence sources and methods being 

disclosed. 

In fact, I would liken the impact of that proposed penalty to the 

impact that automatic declassification in Executive Order 12958 

had on the declassification of historical materials. Even though no 

agency has seen its records automatically declassified, agencies 

were forced to put in a process that would result in declassification, 

and the number of declassification decisions went up dramatically. 

We need a penalty to make clear that FOIA matters. 

I would also note that the provision to require the Attorney General to notify the Office of Special Counsel of judicial findings of arbitrary and capricious agency withholding makes clear that the Attorney General is going to take some action when agency personnel 

ignore FOIA. It makes this stop being an ‘‘us’’ versus ‘‘them’’ procedure and makes clear that it is the government’s obligation and 

mission to support FOIA. 

I am going to close now since I have run out of time, but I have 

submitted the rest of my comments for the record. 

Senator CORNYN. Thank you very much. 

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

forthe record.] 

Senator CORNYN. I would like to note that we have been joined 

by Senator Kyl, who graciously has agreed to let us use his Subcommittee as the forum to have this hearing, and without his help, 

we wouldn’t be here today, so I want to say thanks to him for that. 

He noted that he has got a pretty hectic schedule today and I 

would just tell everybody out there and everybody watching that 

the fact that we don’t have all these seats occupied is no reflection 

on the importance of this, and frankly, no reflection on how, I 

think, well the message will be received and addressed, but it just 

is a fact of life in the United States Senate. It seems like we are 

always flying by the seat of our pants to some extent. 

Chairman KYL. Thank you, and Mr. Chairman, let me just reiterate that. That is why we have staff and why we have a record. 

Unfortunately, this is scheduled during the week that we are debating the budget and that makes it a very difficult thing. I will 

only be able to be here a few minutes, but I wanted to specifically 

come by and acknowledge all of you and welcome you and indicate 

that I think what Senator Cornyn is doing is very, very important, 

to take a look at the status of our FOIA laws right now, and to let 

all of you know that we will want to continue to receive your comments and that my staff will try to be in touch with you. So my 

lack of being here for most of the morning shouldn’t be taken as 

a lack of interest in the subject. Thank you very much. 

Senator CORNYN. Thank you very much, Senator Kyl, and I am 

sure that is true for all of us. This is just the beginning. This is 

not the end. 

Mr. Susman, we would be glad to hear from you. 

20

STATEMENT OF THOMAS M. SUSMAN, ROPES AND GRAY LLP, 

WASHINGTON, D.C. 

Mr. SUSMAN. Mr. Chairman, Mr. Chairman, I am honored to appear today with such an esteemed group of colleagues to support 

S. 394. This legislation is balanced and modest, but it is extremely 

valuable and would strengthen the Freedom of Information Act in 

many important respects. 

Senator Cornyn, you mentioned that this was the first hearing 

on freedom of information in the Senate since 1992. I sit in this 

chair somewhat nostalgically. I testified in 1992 before Senator 

Leahy on what became the Electronic Freedom of Information 

Amendments. I had a chance to testify a decade before that on 

what became the set of amendments in the mid-1980s. And I began 

my career with freedom of information sitting where Jim Ho is 

back there in the Subcommittee in the late 1960s and early 1970s. 

Frankly, you read a lot about how Congress and the Senate has 

changed through the decades, but one thing that seems to be improving with age is the quality of staff in the Judiciary Committee. 

[Laughter.] 

Mr. SUSMAN. In my prepared testimony, I begin with a discussion of how the business community has made use of the Freedom 

of Information Act. I intend that as a complement to the media, advocacy groups, think tanks, public interest groups, that business 

requestors as well as individuals and non-governmental organizations serve an important public interest by bringing about disclosure of how policy decisions are made in agencies, how programs 

work, how products are regulated, how laws are enforced, and how 

contracts are awarded. 

On a broader plain, the marketplace generally functions more efficiently through enhanced access to information, and especially 

government information. Clearly, businesses benefit both directly 

and indirectly from open government information. 

S. 394 addresses some of the really important issues that frustrate freedom of information administration today, but it does so 

carefully. It recognizes that FOIA isn’t a game of ‘‘us’’ versus 

‘‘them,’’ and it approaches responsibly and sensitively the issue so 

that it serves the needs of both ‘‘us’’ and ‘‘them,’’ that is, the requestor community and government agencies that have to administer this law. 

In my prepared testimony, I go through each of the sections and 

review all of the provisions of this statute, but for my few minutes 

of oral testimony, I would like to concentrate on three issues. 

The first is the Office of Government Information Services. Section 11 of the bill establishing this new office is to me the most important provision in the legislation. This new office has a number 

of functions, all of which are important. It will assist the public in 

resolving disputes with agencies as an alternative to litigation. It 

has the authority to review and to audit agency compliance with 

the Act. And it can make recommendations and reports on freedom 

of information administration. A number of States have this kind 

of function, including the State of Texas where the Attorney General plays this important role. 

Appropriations for the Administrative Conference, where this 

new office would be located, must be restored for this to work the 

21

way in which the legislation proposes. ACUS is the right place for 

this office of Government Information Services since it has historically been a nonpartisan agency dedicated to improving administrative procedures and assisting agencies do a better job. If Congress does not make this modest investment to restore ACUS, and 

I urge it to do so, then this office should nonetheless still be established and a location found elsewhere, perhaps in the National Archives. I am confident, Mr. Chairman, that the Office of Government Information Services will more than pay for itself in diverting 

cases from the courts, cases that could be settled with an objective 

arbiter between the requestor and the agency. 

The second issue, recovery of attorneys’ fees in litigation. It is 

imperative that Congress reverse the application of the Supreme 

Court’s Buckhannon decision to FOIA cases. While this may seem 

a little self-serving, since I have been known to litigate an occasional freedom of information case over the past couple of decades, 

it is important for the plaintiff to be able to recover fees and costs 

where the court does not finally adjudicate the issue of disclosure 

for a special reason in these cases. 

It is clear to me, and I believe all of us who have worked with 

the Freedom of Information Act, that government occasionally 

withholds requested information to keep it out of the public domain 

for as long as possible, knowing full well that the law will ultimately not support withholding. Or, on occasion, delay may be 

caused by some other purpose, but the only thing that a requestor 

can do ultimately to get the information which ought to have been 

released earlier is to file a lawsuit. These cases don’t move quickly 

through the courts and they can be expensive to pursue. So when 

the government sees the end of the road, it only has to hand over 

the information at that time and the case becomes moot with no 

consequences to the agency. In the freedom of information context, 

the Buckhannon decision rewards agency recalcitrance and delay. 

I should repeat the same point that Meredith did a few minutes 

ago. Lawyers working with the media, with advocacy groups, even 

with businesses, view litigation as a last resort. Our clients would 

rather have a timely response from the agency. They would rather 

have an Office of Government Information Services to help resolve 

disputes. They would rather negotiate than litigate their differences with the agencies. 

But when a lawsuit is filed, the plaintiff is assuming the same 

role as law enforcer played by the Texas Attorney General. That 

is, where the lawsuit is responsible for disclosure, a public service 

has been performed. In those cases, recovery of fees and costs is appropriate. 

Third issue, enhanced Congressional oversight. That is not captured by a single section in the bill, but by a number of sections, 

and additionally, by the Faster Freedom of Information Act introduced by the two of you last week, Senator Leahy and Senator 

Cornyn, which I was delighted to hear is on a fast track for consideration by the Committee. That bill and a number of provisions of 

S. 394 reflect a commitment by Congress to improve its ability to 

oversee and strengthen administration of the Freedom of Information Act and related laws. I list a number of provisions, starting 

with the findings and going all the way through the studies at the 

22

end of the bill that will enhance Congress’s ability to strengthen 

and oversee the law. Now these, of course, won’t do anything in 

and of themselves, but they signal that Congress intends the Freedom of Information Act to work efficiently and smoothly and will 

continue aggressively to oversee agencies to make sure that is the 

case. 

I want to end with a brief personal story that illustrates the 

power of what I believe to be a truly magnificent law. About 25 

years ago, I sent a Freedom of Information request to the Justice 

Department for records relating to my father, who had been a lawyer in the Justice Department in the 1920s. Since he died when I 

was very young, our family knew nothing about his early professional career, how he came to Justice, what he did while he was 

there, or how he wound up living in Houston, where I was brought 

up. All of this information and more was contained in a package 

of photocopies of faded personnel and litigation records that I obtained from the Department under the Freedom of Information Act. 

I immediately made copies and distributed them to all the family, 

and our family’s understanding and pride in our own heritage had 

been enriched by this experience. My own pride in having worked 

for the Justice Department was certainly enhanced by knowing of 

my father’s role in that agency many decades before. 

The Freedom of Information Act remains a powerful tool that 

contributes meaningfully to our democracy, and S. 394 does an excellent job of addressing some of its remaining weaknesses. 

I appreciate the opportunity to testify and I look forward to continuing to work with the staff of the Subcommittee and the Committee to see this legislation enacted during this Congress. Thank 

you. 

Senator CORNYN. Thank you very much, Mr. Susman. I appreciate your statement. 

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

for the record.] 

Senator CORNYN. Now, we will go to a round of questions. I will 

start with Ms. Cary. I believe Ms. Fuchs mentioned that there were 

about 3.6 million Freedom of Information Act requests in the Federal Government in the year 2003, and did I hear you correctly 

that your office, General Abbott’s office, administered two million 

in a single year? Did I get that right? 

Ms. CARY. Not General Abbott’s office. We administer the ones, 

as you know, that people object to release. Texas Building and Procurement Commission let out some statistics last week that were 

reported in The Statesman that said that they estimated two million requests fulfilled for the fiscal year, I think it was 2004—the 

2003–04 fiscal year, and so we only did—we did about 11,000 ruling off the two million requests. So, you see, the information is 

going out at a much greater pace than it is being withheld. 

Senator CORNYN. Thank you for that clarification. So it sounds 

like requests for a ruling is clearly the exception and not the rule. 

The rule is that recognizing their responsibility, governmental entities are providing the information really without objection, without 

asking for any intervention by your office, is that correct? 

Ms. CARY. Yes, sir. That is our belief. 

23

Senator CORNYN. One of the things that I also want to follow up 

on from my experience, and I know your experience in the AG’s Office, is that many government entities, of course, they have their 

budgetary struggles. We are having to deal with the entire Federal 

budget. But, each agency has their own budget and perhaps is reluctant to allocate a portion of those limited resources to having a 

Freedom of Information Officer or somebody who is actually there 

to administer it, someone to secure the records and the like. Can 

you just speak briefly to your experience in terms of what kind of 

commitment it requires government to make in order to be responsive to these requests? 

Ms. CARY. In Texas, the law says that the Officer for Public Information by law is the chief executive officer of any agency unless 

they designate. So, there is a little bit of motivation on the part of 

most chief executives to make a designation of a Public Information 

Officer, at least one. At the Attorney General’s Office, we have two 

lawyers and one paralegal that work full time answering the requests that come just to the Office of the Attorney General. It is 

my experience that most cities get by with at least one Public Information Officer, with help from their legal counsel. So, generally 

speaking, one person is budgeted in most cities, most counties, and 

on the State level, there is usually a staff of several people that answer public information requests. So those things are committed to. 

It is a top-down commitment, as you know, Senator Cornyn. If 

your executive head of your agency is supportive of prompt release 

of public information and they appoint an officer that shares that 

feeling, as you did with me when I was your Public Information Officer, then things move very quickly because you just need to send 

the information out promptly. So it is a matter of just the time in 

gathering it and sending it out, so—

Senator CORNYN. Thank you very much. 

Ms. CARY. Yes, sir. 

Senator CORNYN. Mr. Mears, you alluded to, as we all are conscious of, the fact that we are living in a post-9/11 world, and that 

security always remains a paramount concern for government. I believe the first requirement of government is to keep the people safe. 

And I know that there are always concerns about whether government itself is perhaps protecting more information than it should 

in the name of security. But, what this bill does, in part, I think, 

is to require it not take away any security exemptions that exist 

under the law but require the government entity who requests the 

information to simply demonstrate in some satisfactory fashion 

that it is not just take the word for it, but to actually show how, 

without revealing too much, that indeed it is a security exemption. 

And, I would like for you to comment on that, but first, let me 

say, you know, I am struck how, of course, in Washington that, unfortunately, we get too embroiled in finger pointing, and, of course, 

people who criticize the current administration forget maybe that 

Democrat administrations had the same problems, and that was alluded to here. But, one of the things I was struck by when I was 

thinking about the Iraq war, for example, is the historic embedding 

of reporters with our troops as they went into Iraq and elsewhere. 

I think we need to work to try to keep this balance, and I also want 

to make sure that we don’t degenerate into finger pointing, which 

24

I think would be destructive of our efforts to move forward on 

something we all agree on on a bipartisan basis. 

But could you just speak as a reporter how you view the balance 

between the security interests that obviously are so important and 

the public’s right to know? 

Mr. MEARS. Obviously, drawing that line has always been a very 

difficult decision to make. It seems to me that the starting assumption ought to be that ‘‘classified’’ and ‘‘security’’ don’t mean the 

same thing. It has been pointed out that over-classification may 

have contributed to the terrorists’ feeling that they were operating 

secretly and could go ahead with 9/11. There has been, I think, a 

60 percent increase in classification of documents in recent years. 

That does two things. It seems to me to speak to going too far 

over the line on the side of secrecy as opposed to disclosure and of 

over-classification, of making classification decisions that aren’t 

warranted. I believe that Tom Ridge made that observation himself, that much of what he saw classified shouldn’t have been classified. I remember Senator Moynihan, the late Senator Moynihan 

fought a long battle about classification and about taking some of 

these reams of documents, some of them ancient history, that are 

still classified secret. 

My other observation on the classification problem would be that 

if you classify more and more material, you are much more likely 

to lessen the use of valid classification to protect real necessary secrets. If everything is classified, then my colleagues are going to go 

after everything. I have already said a couple of times, we don’t 

want security information. We don’t want to equip terrorists with 

information that could hurt this country. But neither do we want 

to be deprived of information that the people of the United States 

ought to know. 

One of the stories you will find in my written testimony is about 

a Civil War episode in which an AP reporter tried to file a story 

about Robert E. Lee’s army marching up the Shenandoah Valley 

and was told that it couldn’t be reported because it would compromise secrets. Our guy, my ancient journalistic ancestor, said, 

‘‘Well, don’t you suppose the Confederates know they are marching 

up the Shenandoah Valley?’’

[Laughter.] 

Mr. MEARS. And the censor said, ‘‘I guess they do,’’ and let the 

story go. I think there is a lot of that mindset and that it is something we need to guard against. 

Senator CORNYN. Thank you. Senator Leahy? 

Senator LEAHY. Thank you very much. Listening to Mr. Mears, 

it makes me think of a time, I remember once on the Intelligence 

Committee, the third time in two weeks the then-Director of the 

CIA was in. They had this emergency meeting to say, here is something I realize I am required to tell you by law, and I hadn’t told—

he hadn’t told anybody in the Congress. But the reason we had 

these three emergency meetings, it had been on the front page of 

either the New York Times or the Washington Post. None of us had 

been told about it, but there it was. And he came up and said, ‘‘I 

was supposed to, under law, I was supposed to tell you and I didn’t 

get around to it, but now it has been in the press.’’ So I finally said, 

you know, we could save so much money and come up here, just 

25

each day have a copy of the Times delivered to us marked ‘‘top secret.’’

[Laughter.] 

Senator LEAHY. I said, we get three benefits from this. One, we 

are going to hear about the information much, much sooner than 

we will ever hear about it from you—this was Bill Casey at the 

time. Secondly, we will get it in far greater detail. And third, the 

greatest advantage, we get that wonderful crossword puzzle. 

[Laughter.] 

Senator LEAHY. A couple of his staff laughed. They were given 

a look by the Director, which makes me think their next assignment was not the best. 

[Laughter.] 

Senator LEAHY. Ms. Graves, the ACLU has several high-profile 

FOIA cases pending now, including ones related to the PATRIOT 

Act and the question of foreign prisoner abuse. On PATRIOT, the 

ACLU forced the Department of Justice and the FBI to release 

data on the provisional law, it has gotten more attention than anything else, Section 215. I think that it is fair to say the ACLU has 

actually forced the public release of far more information than Congress has obtained carrying out its oversight role, to whatever extent it has been on this. Does this mean that—I will toss you a nice 

softball—does this mean that we need FOIA and can’t rely just on 

the Congressional oversight? 

Ms. GRAVES. Well, thank you so much for that question, Senator, 

and also for your kind welcoming remarks to me earlier. 

My answer would be that FOIA is essential, that notwithstanding the separation of powers that is enshrined in the Constitution, that gives the legislature a check over the executive 

branch’s execution of the powers that are contained in the statutes 

passed by Congress, the fact of the matter is that public citizens, 

that individuals and public interest organizations have at times 

had much greater success in getting access to information from the 

government than Committees of the Senate and the House have. 

I think that the most recent disclosures that we have received 

have reinforced that notion. I think the ACLU has received approximately 35,000 documents to date in response to the FOIA lawsuit and the order of the court in the prison treatment cases. About 

20,000 of those documents, I believe, have been public, but 15,000 

were not, and there are many more documents that under court 

order are still being reviewed by the Department of Defense and 

the CIA is undertaking a similar review. 

So ideally, FOIA requests by the public and Congressional oversight can work hand in hand in making sure that our government 

is accountable to the people. 

Senator LEAHY. I think about when you worked at the Justice 

Department, the FOIA guidelines erred on the side of disclosure. 

Now, the guidelines tell agencies the Department of Justice will defend the use of FOIA exemptions. I think that is resulting in, from 

what I see, withholding of a lot of unclassified documents. Both 

Senator Cornyn and I talked to Attorney General Gonzales about 

this. I wish they would go back to a policy that presumes disclosure 

unless you have something that is really classified. 

26

It is the case, I mean, we have actually requested material that 

has been in the press, verbatim in the press, and we have been 

told, well, it is classified. We have got to go on the assumption—

and again, it is not a liberal or conservative issue—we have got to 

go on the assumption of put things out unless it really does affect 

national security. 

Mr. Mears, I take it from reading through your statement you 

feel the war on terrorism has changed the government’s attitude 

toward openness? 

Mr. MEARS. I think that it has predictably led to a more restrictive policy toward information. I suspect that it was also the case 

in such circumstances before my time. I grew up during World War 

II and I remember seeing the posters around that said, ‘‘Loose lips 

sink ships.’’

Senator LEAHY. Yes. 

Mr. MEARS. That presumed that people walking around Lexington, Massachusetts, knew where the ships were, which I don’t 

think we did. 

[Laughter.] 

Mr. MEARS. But I think that instinct has been repeated over our 

history and I think it is in play now. 

Senator LEAHY. When I was four years old, I can remember my 

father going out wearing this tin air raid warden’s hat going 

around urging the people in Montpelier, Vermont, to pull their 

shades. I did not really think that we were the number one target 

in the world, although when you read General Walters’ book, 

Vernon Walters’ book, you find that he was, as a young lieutenant, 

rousted out of bed in the middle of the night and asked if he spoke 

German. He said, ‘‘Yes, I speak about ten languages.’’ And he was 

at Fort Ethan Allen outside of Burlington and they were intercepting some radio messages from Stowe being sent to U-boats. 

Subsequently, they found out who the Nazi sympathizer was there. 

I think sometimes we get—there are still things we do that make 

you wonder. Don’t photograph this site. Well, we have got a photograph of it here that has been published last year. That was last 

year. Don’t photograph it this year. I think we have to be careful. 

Are there threats to the United States? Of course. Is there a real 

terrorist threat? Yes. I just, though, remind everybody what, to 

paraphrase Benjamin Franklin, who said that the people who 

would trade their liberty for security deserve neither. 

Mr. Chairman, again I thank you for doing this. I want to put 

in the record a statement by Senator Feingold, if I might—

Senator CORNYN. Certainly, without objection. 

Senator LEAHY. —nd I will submit other questions for the record. 

Senator CORNYN. Absolutely. 

Senator LEAHY. Thank you. 

Senator CORNYN. Thank you. I think the discussion up to this 

point leads me to want to ask a little bit about process issues. One 

of the differences I found coming from the State government to the 

Federal Government is a lack of process by which people understood what their responsibilities were. At the State level there were 

consequences for not acting within a particular time period and 

there was actually somebody, if you had a dispute, let us say a leVerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC
27

gitimate dispute about what the law required, what was open and 

what was not open, somewhere you could go and ask. 

I wonder, Mr. Susman, can you share with us some of your 

thoughts? You talked a little bit about attorneys’ fees, the importance of this ombudsman. We heard something about resources 

people can go to to find out what their responsibilities are, how 

could we improve those incentives to comply in a way that would 

reduce the need for people ultimately to go to court? 

Mr. SUSMAN. Thank you, Mr. Chairman. Let me start by saying 

that I do not tend to view the professionals who administer Freedom of Information Act requests from day to day, the access professionals in the bureaucracies, as the problem because, for the most 

part, they follow the policy directions from above. They work with 

the resources that they have. They work with the systems that 

they have. They work with the technology that they have. 

So I think that the issues, the process issues, administration 

issues, are not the fault of those who receive the requests, open 

them, and have to find the documents and respond, but they arise 

higher up in the agency. And most agencies, and certainly the executive branch generally, do not have the structure for dealing with 

disputes in a regular and rapid way. 

So, for example, if there is a delay that an agency experiences 

or if there is a dispute over fees, a lot of the times the reason you 

have to go directly to court is because you can’t otherwise get a 

person high enough up in the agency to focus on the subject quickly 

enough. Sometimes, you go to court in order to get the Justice Department involved because the agency doesn’t want to disclose 

something that will be embarrassing, and it is only when the U.S. 

Attorney’s Office or a Justice Department lawyer calls a meeting 

with his or her client before the status conference in court that the 

discussion is had that Senator Leahy refers to in terms of the Attorney General’s memorandum. It may say we will defend you, but 

these lawyers on the line don’t want to go before the District Court 

judges and defend cases that are indefensible. 

So that supports having, for example, a tracking system that 

your legislation calls for in the first instance. I was talking to some 

of my colleagues about the number of times I have used the Freedom of Information Act request and had to follow up with a faxed 

copy of the request or call and send another one or even two over 

again because the agencies haven’t had the systems in place to 

track them and to let you know readily where the request is. This 

is technology most foreign countries, which have been adopting 

open government statutes over the last decade, already have. It is 

time for us, too. 

Once you begin to deal with the agency, if there is a dispute, a 

lot of times, these disputes are caused by simply mistrust. The 

agencies have had their fill of requestors trying to get this kind of 

information and the requestor has had their fill of getting what is 

viewed as stonewalling by the agency, and yet there is no place else 

to go. There is just no place to go. 

You can go to the Justice Department for advice, but they defend 

the agencies, so that is not at all like the Texas Attorney General’s 

Office. That is not exactly where I would put my hotline in the 

Federal Government. We need an independent office that can act 

28

as a neutral, objective arbiter between the requestor and the agency, and then at the end of each year say, these are the kinds of 

problems, in some ways perhaps like your Faster FOIA Commission would work, these are the kinds of problems that we see happening over time and let us work on them. Let us not have Congress have to come back every few years and make the adjustments. Let us do it ourselves. 

The Justice Department has not played that role. The White 

House has not played that role, and it is useful to have another 

agency that can play that role. 

Senator CORNYN. Mr. Tapscott, I guess we have talked a little bit 

about the ideological spectrum reflected here. I think we cover the 

whole spectrum, which is good. I think, as Senator Leahy and I 

have said time and time again, this is not a Democrat or Republican issue. And I guess, really, I am trying to figure out in my own 

inarticulate way how to say that the facts are the facts are the 

facts, and the interpretation that you draw from the facts or perhaps the way you see the world based on those facts may differ and 

that may be what makes some people conservative, some liberal, 

some Republican, some Democrat. But what we are talking about 

is getting access to the facts. 

It has been my experience that, from a conservative standpoint, 

the facts will often reveal abuses, waste. My experience has also 

been that the facts will often reveal what a good job government 

officials are doing. And, my experience has been that most people 

that work in government are good people trying to do their best to 

live up to their responsibility. 

Would you address, in terms of the waste and abuse and the importance that you see in having a robust Freedom of Information 

Act, why it is so important in that area? 

Mr. TAPSCOTT. Certainly. Let me preface that by saying, Senator, 

that I occasionally wear a pink shirt to work and I have noted on 

occasion that when I have done that, that some of my colleagues 

at Heritage say something along the lines of, ‘‘He has been talking 

to Leahy again.’’

[Laughter.] 

Senator LEAHY. You weren’t supposed to tell anyone. 

[Laughter.] 

Mr. TAPSCOTT. I think your point is absolutely right. Government 

frequently cheats itself of the benefit of people knowing what a 

good job most government employees do. The fact is, however, with 

any government as big as the Federal Government or a government 

the size of the State of Texas or wherever it may be, there will be 

problems and there will be waste and fraud occurring. 

Two examples that come to my mind, which I allude to in my 

statement, the Sun Sentinel in Florida found through the FOI that 

in spite of the fact that Hurricane Frances had landed 100 miles 

north of Miami-Dade County, that residents there had collected 

about $28 million in Federal reimbursements for things that had 

been destroyed by this hurricane, like televisions and sofas and 

things like that. The highest recorded winds in Miami-Dade County were 47 miles an hour. We wouldn’t have known about that 

without the FOI. 

29

More importantly, there is a case going on right now which I 

think speaks to one of Tom’s points, and that is Cox Newspapers 

has been requesting from the Department of Justice a database of 

grants from the Federal Government to State and local law enforcement. The reason they are looking for this is they have discovered in Georgia that there are several thousand illegal aliens who 

are—excuse me, in Georgia, several hundred illegal aliens who had 

been convicted of serious felonies and released but then not deported as they are required to be under Federal law, the reason 

being the immigration officials from the Federal Government just 

didn’t show up. And the suspicion obviously is that the reason the 

Department of Justice will not release this database is because 

they are afraid of the headlines that could result. 

If they did release that, for the same reason that ‘‘Wanted’’ posters work in the post office, if these reporters had access to this 

database, private citizens and the media all over the country could 

help the government find these people who have committed serious 

crime. 

Senator LEAHY. Thank you, Mr. Chairman. I worry about that 

very same thing, the number picked up, released. 

Let me ask this question regarding the National Security Archive. You are one of the most active users of FOIA in the nonprofit 

community. I am told by my staff you filed 30,000 requests, made 

six million pages of documents available. You have probably heard 

my story before about Bill Casey and stamp the newspaper top secret. But you sort of go across the board to a whole lot of different 

agencies. I mean, it might be Agriculture, it might be Justice, it 

might be anything else. Do you find a difference in the way agencies monitor and track their FOIA requests? Is there uniformity 

among agencies? 

Ms. FUCHS. No, Senator Leahy, there is not uniformity amongst 

agencies, and in fact, it is some of those differences that really 

highlight why the proposals in the bill, such as the hotline and the 

tracking and monitoring, is so necessary. 

What we have found in looking at over 35 Federal agencies is 

that they have completely different systems. Some are so decentralized that once you submit your FOIA request, you have absolutely 

no idea where it goes, whether it goes to another component of the 

agency, whether it gets referred out to another agency altogether, 

and there is no way of finding that out except by making many, 

many phone calls. You know, we have a full-time person who monitors our FOIA requests and we have a database in which we keep 

track of every FOIA request and what happens with it. But for 

most FOIA requestors, they don’t have the ability or the resources 

to do that. 

I think that requiring agencies to acknowledge requests, requiring them to set up a FOIA hotline so you can find out where your 

requests are are critical for making the agencies be responsive. And 

frankly, I think it is going to reduce disputes and litigation, as 

well, because by having an agency let the FOIA requestor know, 

we have your request, it is in the line, we are taking care of it, this 

is our estimated completion time, people are going to feel that the 

government is responding to them. 

30

What happens right now is with many agencies, it is a complete 

black hole. We have one agency where we have something like 100 

requests that are, oh, between two and 14 years old that we don’t 

get any responses to, despite follow-up. Well, that is not going to 

be possible when agencies have to have a tracking system in place. 

Senator LEAHY. I also see some of these new classifications, ‘‘sensitive but unclassified,’’ or ‘‘for official use only.’’ These don’t have 

any legal protections under FOIA, do they? 

Ms. FUCHS. They shouldn’t have legal protection under FOIA. 

Senator LEAHY. But do agencies tend to hold back? I mean, do 

they have a chilling effect on FOIA? 

Ms. FUCHS. Well, we at the National Security Archive, particularly because many of our requests go to military and intelligence 

agencies, we worry about that. We have seen an increase in the labeling of information as ‘‘sensitive but unclassified,’’ ‘‘for official use 

only,’’ and agency officials tell us it doesn’t have an impact on 

FOIA, but, in fact, it is hard to believe that when documents are 

coming across for review and they say, ‘‘sensitive but unclassified,’’ 

‘‘sensitive security,’’ ‘‘sensitive homeland security information,’’ or 

any of the other combinations of letters, that they are not being 

held back from disclosure. 

Senator LEAHY. I remember one of the first trips as a young Senator I took to the then-Soviet Union and we were in what was then 

called Leningrad, now St. Petersburg, a beautiful city, and I was 

walking around to do photography, and they still had signs on all 

the bridges. I had seen the maps that had the city about eight 

miles off from where it really was, as though your satellites 

couldn’t make any difference, and the bridges had signs in Russian, 

English, I think French, saying no photography allowed there. One 

is a beautiful bridge with great sculptures. I had my wife who 

stands while I was taking a photograph of her with a telephoto lens 

but shooting over her shoulder. 

But then I came to a church, and again, it was being repaired. 

Here is this sign. I couldn’t understand the reason. The person who 

was with us was actually in the KGB, although that is not what 

they told us—we knew it, he wasn’t going to say it—but he said, 

‘‘Go ahead and take the picture.’’ As soon as I put up the camera, 

a police officer comes running down the street. I thought, God, I 

am going to end up in jail. He got almost up to this guy, who 

flashed his ID at him and the man starts going backwards saluting. And he turns to me and says, ‘‘Like I said, take the picture.’’

[Laughter.] 

Senator LEAHY. I worry in some ways we are doing this. Again, 

I don’t want somebody to send out a list of here are our 12 undercover agents in this particular country. Of course not. Nobody is 

asking for that. But it is so easy to say, well, if we classify everything, we can never be accused of letting the wrong thing come out. 

I appreciate what you are doing and Senator Cornyn and I will 

continue our work. I mean, he has had his own experience in Texas 

and can sell how well it can work. We will just keep on it, but 

thank you. I will submit the rest of my questions. 

Senator CORNYN. Ladies and gentlemen, all good things must 

come to an end and we are going to close this hearing for now. But, 

as I said earlier, this is, from my standpoint and I trust from SenVerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC
31

ator Leahy’s standpoint, the beginning and not the end. We consciously chose in our discussions about what to file in terms of 

early legislation things that we thought would not be particularly 

controversial, things that were common sense and would assist 

agency representatives both through education and training and 

other things to do the job that the law already requires them to do. 

I not only want to thank you for your testimony, your oral and 

written testimony today, but also thank you for your willingness to 

work with us on this important issue and trust that we can continue to call on you from time to time to help us as we move forward, because as I said, this is just the beginning and not the end. 

So, on behalf of Chairman Specter and certainly Senator Kyl and 

Senator Feinstein, as I said, Senator Leahy, they allowed us to hijack their Subcommittee for purposes of this hearing, I want to express my appreciation to them, but also finally again to Senator 

Leahy and his staff for their great work. 

We will leave the record open until 5:00 p.m. next Tuesday, 

March 22. There will be, no doubt, written questions that others 

would like to submit to you which we would like to get your answers for the record and would ask you to respond to those as soon 

as you can. 

With that, the hearing is adjourned. 

[Whereupon, at 11:48 a.m., the Subcommittee was adjourned.] 

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

[Additional material is being retained in the Committee files.]

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