Washington
DC, March 14, 2007 - National Security
Archive General Counsel Meredith Fuchs today
testified before the Senate Committee on the Judiciary
in support of a FOIA reform bill introduced yesterday by Senator
Patrick Leahy (D-VT) and Senator John Cornyn (R-TX). The
OPEN Government Act of 2007 is “critical for improving the functioning
of FOIA,” according to Ms. Fuchs’s statement.
Ms. Fuchs charged that “Instead of viewing the public as the
customer or as part of the team, the handling of FOIA programs
at some agencies suggests that the public is considered the enemy.”
She highlighted ongoing problems with FOIA performance at federal
agencies, and demonstrated that the Executive Branch’s own reporting
demonstrates that they will not fix the problems without a congressional
mandate. Ms. Fuchs offered the example of the Department
of Justice, which is the lead agency on implementation of the
Executive Order, but has failed to meet 30 of its own FOIA performance
improvement goals. She also recounted how the Department
of the Treasury is reducing its FOIA backlog by sending letters
to requesters, such as the Archive, asking them whether they are
still interested in pursuing pending requests submitted in the
mid-1990s and threatening to close the request if a response is
not received within 14 days. Treasury also asks whether
the FOIA requester can resubmit the original requests because
they were destroyed despite the fact that no substantive response
was sent to the FOIA requester in the intervening 13 years.
In her statement, Ms. Fuchs endorsed important provisions of
the OPEN Government Act, including restoration of the catalyst
theory for attorneys’ fees awards when FOIA requesters are forced
to litigate to obtain a response from the government, improved
annual reporting, tracking, and several additional provisions
designed to close loopholes and protect against the erosion of
open government principles.
In his opening remarks at today’s hearing,
Senator Leahy referenced the Archive’s E-FOIA audit, released
Monday: “I am also troubled by the findings in a new
report by the National Security Archive that, ten years
after Congress passed the Electronic Freedom of Information Act
(“E-FOIA”) Amendments, which I coauthored in 1996, federal agencies
are still not complying with the requirements of that law.”
Senator Leahy was an original co-sponsor and great champion of
E-FOIA, and along with Senator Specter and others on the committee,
expressed interest and dismay about the lack of progress by federal
agencies in using the Internet to disseminate information to the
public.
Other witnesses on the panel included Tom Curley, President and
CEO of the Associated Press and representative of the Sunshine
in Government Initiative, Sabina Haskell, Editor of the Brattleboro
Reformer, and Katherine Cary, General Counsel for the Texas Office
of the Attorney General.
The Archive has been a leading user of the Freedom of Information
Act and advocate for effective FOIA reform. The Archive has completed
five government-wide audits of FOIA administration (supported
by the John S. and James L. Knight Foundation), including most
recently “File
Not Found: 10 Years After E-FOIA, Most Federal Agencies Are Delinquent.”
Recommendations from the Archive's reports on those audits have
been adopted in President Bush's Executive Order 13,392 ("Improving
Agency Disclosure of Information"), included in FOIA legislation
introduced in earlier Congresses by Senators Cornyn and Leahy,
and Congressmen Smith and Waxman, and included as goals in many
of the 91 agency FOIA Improvement Plans developed under the Executive
Order.
