February 16, 2005
It won't get much play in a national media obsessed with the war
in Iraq, Social Security reform and the Michael Jackson trial, but
Sen. John Cornyn is proposing a package of much-needed reforms in
the federal Freedom of Information Act.
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."
If enacted, Cornyn's historic Open Government Act of 2005 would bring some organization to the federal government's most basic law guaranteeing the public access to official documents and data paid for with their tax dollars. Citizens and businesses filed more than 2.7 million FOIA requests last year, and processing them cost more than $64 million in 2003 (the most recent year for which data are available) according to the U.S. Department of Justice.
Among the many fundamental FOIA problems Cornyn addresses are two that most concern journalists and other advocates of the public's right to know. The first concerns the fact that federal agencies and employees currently face no real penalty for failing to fulfill an FOIA request even though they're required by law to do so. Agencies routinely miss the statutory 20-day deadline for acting on an FOIA request. Cornyn's proposal addresses this problem in two ways:
-Agencies that fail to meet the deadline would be deemed to have waived any right to assert an exemption in denying an FOIA request, unless disclosure would harm national security, invade personal privacy or violate proprietary business information. Since agencies routinely cite one or more of the nine exemptions now permitted by law, the Cornyn measure would severely restrict agency options, thus encouraging them to respond in a timely manner as required by law.
-Government employees who willfully and unreasonably refuse to disclose documents sought in an FOIA request could be punished under an obscure provision found in the existing FOIA law. Unfortunately, it appears that provision has never been used, which probably helps explain the lackadaisical attitude journalists and others frequently encounter among bureaucrats tasked with responding to FOIA requests.
Cornyn's measure directs agencies to discipline offending employees when justified and requires the attorney general to notify the government's Office of Special Counsel whenever a judicial decision notes what appears to be an arbitrary or capricious denial of an FOIA. The measure also requires the attorney general and Office of Special Counsel to report annually to Congress what actions they have taken in response to such court findings.
The second fundamental problem the Cornyn proposal addresses is the inability of FOIA requestors to bring effective pressure on a recalcitrant agency.
Cornyn takes a cue from his Texas days by requiring all federal agencies to establish a telephone or Internet hotline able to provide every FOIA requestor with an individualized tracking number and a credible status report, including an estimated date of agency action.
An FOIA ombudsman would also be established under the Cornyn reforms, with authority to review and report on agency FOIA policies and performance, litigate disputes between agencies and requestors, and recommend FOIA policy changes to Congress. The ombudsman would be located in the Office of Government Information Services of the Administrative Conference of the United States.
There is much more in the Cornyn FOIA reform package that cannot be covered in a limited space, but you can get more information by contacting Sen. John Cornyn's office at 202-224-2934 or on the Internet at http://cornyn.senate.gov. Extremely powerful lobbies and interests in both political parties in Washington fear sunshine in government, so Cornyn is going to need your help.
Mark Tapscott is director of the Center for Media and Public Policy at The Heritage Foundation (heritage.org).
Distributed nationally on the Knight-Ridder Tribune wire