Cornyn-Leahy OPEN Government Act improves FOIA access, recognizes bloggers as media sources

Cornyn-Leahy OPEN Government Act improves FOIA access, recognizes bloggers as media sources

Sen. Cornyn (R-TX) and Sen. Leahy (D-VT) have introduced bipartisan legislation that would bolster public access to government information, and for the first time recognize bloggers as legitimate representatives of the media. Called the Openness Promotes Effectiveness in our National Government Act of 2005 (OPEN Government Act), the bill is designed to promote openness in government.

The bill is being praised on both sides of aisle (supporting excerpts below) as much-needed legislation to update open records access to bring agencies into compliance with the statutory 20-day response times and broaden legitimate media access requests to include internet journalists, or bloggers. It also seeks to establish a hotline and internet tracking ability of the status of such requests.

Continued below.

Sen. Leahy's floor remarks are here:

excerpt:
The OPEN Government Act reaffirms the fundamental premise of FOIA: government information belongs to all Americans and should be subject to a presumption in favor of disclosure.  James Madison said that "a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both."  His caution rings just as true today.  The public's right to know what its government is doing promotes accountability, imbues trust and contributes to our system of checks and balances.

Below are the highlights of the bill, from Sen. Cornyn's site:

The OPEN Government Act contains more than a dozen substantive provisions, designed to achieve the following four objectives:

   1. Strengthen FOIA and close loopholes
   2. Help FOIA requestors obtain timely responses to their requests
   3. Ensure that agencies have strong incentives to act on FOIA requests in a timely manner
   4. Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible

STRENGTHEN FOIA AND CLOSE LOOPHOLES
• Ensure that FOIA applies when agency recordkeeping functions are outsourced

• Establish a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation

• Impose annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information

• Protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association including bloggers and other Internet-based journalists

• Provide reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests
  

HELP FOIA REQUESTORS OBTAIN TIMELY RESPONSES
• Establish FOIA hotline services, either by telephone or on the Internet, to enable requestors to track the status of their requests

• Create a new FOIA ombudsman, located at the Administrative Conference of the United States, to review agency FOIA compliance and provide alternatives to litigation

• Authorize reasonable recovery of attorney fees when litigation is inevitable
  

ENSURE THAT AGENCIES HAVE STRONG INCENTIVES TO ACT ON FOIA REQUESTS IN TIMELY FASHION
• Restore meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request

• Impose real consequences on federal agencies for missing statutory deadlines

• Enhance authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure

• Strengthen reporting requirements on FOIA compliance to identify agencies plagued by excessive delay, and to identify excessive delays in fee status determinations
  

PROVIDE FOIA OFFICIALS WITH THE TOOLS THEY NEED TO ENSURE THAT OUR GOVERNMENT REMAINS OPEN AND ACCESSIBLE
• Improve personnel policies for FOIA officials to enhance agency FOIA performance

• Examine the need for FOIA awareness training for federal employees

• Determine appropriate funding levels needed to ensure agency FOIA compliance
  

This bill is being praised by organizations on the left and the right:

ACLU Lauds Introduction of Cornyn-Leahy 'OPEN Government Act,' Much-Needed Measure Would Increase Transparency, Access to Records  

"Senator Cornyn and the ACLU do not often agree, but, as his bill shows, a commitment to open government transcends political ideologies," said Laura W. Murphy, director of the ACLU Washington Office. "This much-needed bill will help buck the growing trend of hiding the actions of the government from public scrutiny. Secrecy, not openness, all too often seems to be the dominant trend of agencies in recent times."

American Library Association: Endorsement letter

The American Library Association has long supported open access to government information as a key component of informed public participation in decision-making. We commend your commitment to amending the Freedom of Information Act in order to strengthen that access. We look forward to working with you to ensure passage of this legislation.

Heritage Foundation: Commentary

Before his 2002 election as the junior senator from Texas, Cornyn, a conservative Republican, compiled an enviable reputation as a friend of the people's right to know what their government is up to while serving as the Lone Star State's attorney general. Now Cornyn hopes to bring a new gust of the same fresh air to Washington via his proposed Open Government Act of 2005.

His reforms are badly needed. A 2003 survey by the National Security Archive found a system "in extreme disarray." It concluded that "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 e-mail and meeting notes; and the lack of central accountability at the agencies resulted in lost requests and inability to track progress."

Full list of supportive or endorsing organizations, including EPIC, Center for Democracy and Technology, Federation of American Scientists/Project on Government Secrecy and others, is here.

•  Open Government

  is a basic right. It's our money and they are supposed to represent us. We have every right to know what is going on.

  "The greatest service which can be rendered any country is to add an useful plant to its culture" -- Thomas Jefferson

  by tommurphy on Sat Feb 19, 2005 at 01:42:24 PM PDT

•  I wonder if the bill addresses the inflated fees

  that the Justice Department is charging. It's a slimy tactic for suppressing the flow of information, and it should be squashed. Read this recent piece in the Boston Phoenix:

  Under cover

  How the White House's assault on the Freedom of Information Act enables torture, exposes media apathy, and hurts our ability to govern ourselves

  In mid January, the Justice Department unveiled its latest tactic to avoid complying with a more-than-year-old FOIA request that had been filed by the People for the American Way Foundation, in Washington. The organization was seeking data regarding secret proceedings against immigrants who had been rounded up after the 9/11 terrorist attacks. By all accounts, fulfilling the FOIA request should not have been a difficult task; an official in the Justice Department could have carried it out in a few days by phoning or e-mailing the 93 US attorneys' offices around the country. But rather than cooperating, the Justice Department said it would cost People for the American Way nearly $400,000 -- $372,799 plus expenses -- and the fee would have to be paid in advance. At press time, the organization was still in court, fighting to have the fee lowered to a reasonable amount. "We're quite suspicious that the fee, to a certain extent, is a bit of a subterfuge," says Elliot Mincberg, vice-president and general counsel of People for the American Way. "I think this is perhaps the most secretive administration since the Freedom of Information Act was passed in the 1960s."
  

  And the CIA has resorted to simple stonewalling, which is also discussed in the Phoenix article.

  On February 2, US District Court judge Alvin Hellerstein, in New York, ordered the CIA to comply with a FOIA request that had been submitted in October 2003 by the American Civil Liberties Union and a coalition of other public-interest organizations. The ACLU, headquartered in New York, has been instrumental in rooting out thousands of documents related to the torture of detainees at US facilities overseas. Yet several agencies, most notably the CIA and the Defense Department, have resisted turning over documents. The CIA, in particular, had argued that the law exempts the agency from even having to search its so-called operational files in response to a FOIA request, a line of reasoning that Hellerstein decisively rejected. "It's a very good ruling. It's unfortunate that we needed it," says Jameel Jaffer, a staff attorney with the ACLU. "The CIA has released not a single document to us, and there have been credible allegations that the CIA has been involved in the torture of detainees."

  Jaffer adds, "The Defense Department has also been extremely uncooperative." Oddly enough, one of the most outspoken supporters of FOIA at the time of its passage 39 years ago was a young Republican congressman named Donald Rumsfeld. In a congratulatory letter to President Lyndon Johnson, Rumsfeld wrote, "I whole heartedly agree that freedom of access to data about Government is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be withheld or restricted."

  I'm amazed that Cornyn is behind this - isn't he otherwise your garden variety Bush bootlicker?
  

  by bumblebums on Sat Feb 19, 2005 at 02:08:13 PM PDT

  •  FOIA fee waivers

    The legislation proposes to extend FOIA fee waivers to journalists, regardless of institutional affiliation (including bloggers). Does that mean the media's fees are waived in FOIA requests? I have never examined the process to know who pays and who doesn't, so I'm hoping someone who knows can clarify.

    by retired on Sat Feb 19, 2005 at 02:16:46 PM PDT

    •  I don't know the answer ..

      The FOIA is critically important on so many levels, and these reforms and enhancements should happen.

      Recommended - I hope others here feel the same.

      Thank you for your diary!

      by bumblebums on Sat Feb 19, 2005 at 02:21:46 PM PDT

      •  FOIA fee structure

        According to the DoJ fee guide, there are three levels of fees assessed to FOIA requesters, based on the intended use of the information.

        The first level of fees provided for by the FOIA encompasses charges for document search, review, and duplication, which are applicable "when records are requested for commercial use." (26) The OMB Fee Guidelines define the term "commercial use" as "a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is being made," (27) which can include furthering those interests through litigation. (28)

        [snip]

         The second level of fees limits charges to document duplication costs only, "when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media." (47) FOIA requesters falling into one or more of these three subcategories of requesters under the 1986 FOIA amendments enjoy a complete "exemption" from the assessment of search and review fees. (48)

        ...

        The definition of a "representative of the news media" refers to any person actively gathering information of current interest to the public for an organization that is organized and operated to publish or broadcast news to the general public. (54) The Court of Appeals for the District of Columbia Circuit has elaborated upon this definition, holding that "a representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." (55) In reaching its decision, the D.C. Circuit relied in large part on the legislative history of the 1986 FOIA amendments, (56) not finding the term "representative of the news media . . . self-evident [in] what [it] covers." (57) During the next decade, this category of FOIA requesters received scant additional attention by the courts. (58)

        In more recent years, however, perhaps partly due to the passage of the Electronic FOIA amendments, (59) in conjunction with the ushering in of the "Information Age," (60) there has been renewed interest in the question of what constitutes a "representative of the news media" both in the FOIA context (61) and with regard to non-FOIA matters as well. (62) Indeed, since 2000, there have been no fewer than nine district court FOIA decisions on this issue that have arisen within the D.C. Circuit, with eight involving the same plaintiff organization. In almost all of these decisions, the court found that the organization before it was not such an entity. (63) In addition to their reliance on the framework established by D.C. Circuit in National Security Archive, these numerous decisions also relied on the implementing regulations for the fee limitations/fee category portion of the statute. (64) Despite the direction taken (and given) by the District Court for the District of Columbia on this issue though, it is likely to remain a somewhat unsettled area of law until it can be addressed by the D.C. Circuit, and other circuit courts as the issue develops, as well. (65)

        The D.C. Circuit did make clear at the time of its decision in National Security Archive, however, that the term "representative of the news media" excludes "'private librar[ies]' or 'private repositories'" of government records, or middlemen such as "'information vendors [or] data brokers,'" who request records for use by others. (66) This fee category, though, includes freelance journalists, when they can demonstrate a solid basis for expecting the information disclosed to be published by a news organization. (67)

        It is well settled that a request from a representative of the news media that supports a news-dissemination function "shall not be considered to be a request that is for a commercial use." (68) A request from a representative of the news media that does not support its news-dissemination function, however, should not be accorded the favored fee treatment of this subcategory. (69)

        Further, a request that is made to support an endeavor that merely makes the information received available to the public (or others) is not sufficient to qualify it for placement in this fee category. (70) Under the FOIA, once a requester has gathered information of interest to the public it must, in some manner, "use its editorial skills to turn the raw materials into a distinct work" in order to qualify as a representative of the news media. (71) In the first case to construe this subcategory of requesters, the requester's status was not in dispute but rather where the news organization performed its media function. There the court held that even a foreign news service may qualify as a representative of the news media. (72)

         The third level of fees, which applies to all requesters who do not fall within either of the preceding two fee levels, consists of reasonable charges for document search and duplication, (73) as was provided for in the statutory FOIA fee provision that was in place before the 1986 FOIA amendments.

        When any FOIA request is submitted by someone on behalf of another person -- for example, by an attorney on behalf of a client -- it is nevertheless the underlying requester's identity and intended use that determines the level of fees. (74)

        Link to full DoJ FOIA fee guide

        by retired on Sat Feb 19, 2005 at 02:57:01 PM PDT

  •  Cornyn occassionally lapses into good sense

    And he was  a pretty good Texas AG from what I recall.

    Which is why his support for Abu Ghraib Al was doubly infuriating to me.

    And the sanctimonious replies I got from his office when I contacted them made me want to vomit.

    All is not forgiven, by any means, but I hope this is as good a bill as it sounds like, and that it makes it through both houses.

    by boadicea on Sat Feb 19, 2005 at 02:30:12 PM PDT