Update 5/12/05
Update 5/12/05
If freedom of information is a media issue, you couldn’t tell it from the coverage of yesterday’s House hearing on FOIA and its problems. It was the first House oversight hearing on the subject of public records access in five years. The working media turnout was, shall we say, light, with Associated Press and Cox Newspapers the only major media sign-ins.
The subcommittee on Government Management, Finance and Accountability, chaired by Rep. Todd Platts, (R-PA) heard from three witnesses representing requesters and three federal agency witnesses (Justice, GAO and Archives), the later defending bureaucratic performance while acknowledging problems. My favorite line, from Justice: “All in all, FOIA is working about as well as might be expected as it enters its middle age.”
I mentioned in an earlier update that Justice pulled its website statement Sen. John Cornyn’s OPEN Government bill offered “promise.” The Justice testimony sought to shoot down several provisions; indeed Cornyn filed a statement of rebuttal.
Justice clearly doesn’t like the attorney fees provision of the bill that would statutorily adopt the “catalyst” approach, granting those forced to sue fee recovery if they substantially prevailed anytime after filing suit. Right now, the court practice is to allow recovery only after a favorable court decision. Increasingly agencies are using this to extend denial to the last possible moment before trial, then give up all or some of the requested documents. That gets them off the legal fee hook. Justice called this “sound public policy” that should “remain undisturbed.”
But the Justice wasn’t all do nothing. It did urge Congress to expand the confidentiality granted for “inter and intra agency memorandums and letters” so, among other things, the records of settlement deals with private parties could be kept from the public.
But the government witnesses got hit with repeated questions from the committee members about an absence of incentives in the law for employees to provide the public with information and no consequences for delaying or withholding records that should be public. There appeared to be some support for an ombudsman on FOIA – one of the provisions of the OPEN Government Act.
There was a second panel including Jay Smith, the president of Cox Newspapers and current chairman of the Newspaper Association of America, who recommended the ombudsman and catalyst provisions among other changes.
I’ve posted the Cox Newspapers story on the hearing along with the written testimony of each of the six witnesses on the website, www.cjog.net.
Rep. Henry Waxman (D-CA) announced at the start of the hearing that he will introduce a 2005 version of his “Restore Open Government Act.” It’s got some good provisions, in particular a section designed to help Congress and the public get a better sense of the impact of pseudo-classifiers like “sensitive but unclassified” and “for official use only” and whether they are effectively closing off information that should be subject to disclosure under FOIA.
I’ve attached a copy of the “discussion draft” of the bill.
Pete Weitzel
