Testimony before Government
Subcommittee on Government Management, Finance and
States House of Representatives
Center for Media and Public Policy
The Heritage Foundation
My name is Mark Tapscott.
I am Director of the Center for Media and Public Policy at The
Heritage Foundation. The views I express in this testimony are my
own, and should not be construed as representing any official
position of The Heritage Fundation. I appreciate very much the
opportunity to testify on "The Open Government Act of
Among Secretary of
Defense Donald Rumsfeld's lesser-known marks of distinction in his
public service career is the important role he played as a freshman
Republican Member of the House of Representative in writing and
helping secure passage of the 1966 Freedom of Information Act.
an important observation during a floor speech he delivered to the
House June 20, 1966, that has great relevance for us today as we
seek to improve the present Freedom of Information Act system.
"The 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.
remains 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
believe they hold a vested interest in the machinery of their
agencies and bureaus and there is resentment of any attempt to
oversee their activities, either by the public, the Congress or
appointed department heads."
described as having happened over the years prior to 1966 is still
with us. It is the process of career federal employees - who
routinely handle the vast majority of FOIA requests - becoming ever
more familiar with the vague phrases and loopholes of the FOIA and
its impleming regulations and case law over the years.
recognize that in part this process results from the intentional
healthy insulation our system provides to career federal employees
to protect them from inappropriate pressure from political
appointees. But that same insulation also makes it more difficult
to hold employees accountable for things like failing to properly
administer the FOIA.
Let me say at this
point that before becoming a journalist I served in the legislative
and executive branches of government. I was the fourth generation
of my family to serve in government, I have the utmost respect and
admiration for career federal workers.Even so, they are not exempt
from human nature, which too often seeks the path of least
resistance. In FOIA matters, that path too frequently involves an
abuse or misapplication of the law.
this process of bureaucratic stultification accounts for most of
the problems with the current FOIA system and helps explain why a
2003 survey by the National Security Archive found an FOIA system
"in extreme disarray." That survey covered 35 federal agencies that
accounted for 97% of all FOIA the previous year.
other things, the National Security Archive said it found 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
second phase of the same 2003 survey, the National Security Archive
asked the same agencies for lists of the 10 oldest outstanding FOIA
requests in their systems. Here is how the archive described the
January 2003, the archive filed FOIA requests asking for copies of
the '10 oldest open or pending' FOIA requests at each of the 35
federal agencies that together handle more than 97% of all FOIA
requests. Six agencies still have not responded in full, more than
10 months later and despite repeated phone contacts …the
Freedom of Information Act itself, as amended in 1996, gives
agencies 20 working days to respond to FOIA requests."
spent nearly two decades as a journalist here in Washington, D.
C.,and having filed more FOIA requests than I care to remember,
there were no surprises for me in the National Security Archive
survey. Nor was I surprised in 2002 when my own Center for Media
and Public Policy found in a survey of four agencies that
journalists ranked only fourth among the most active FOIA
requestors. Ask them why and the replies invariably are variations
on this theme: It wastes too much time and they probably won't
disclose what I need without a big legal fight, which my paper
can't afford, so why bother?
Two of the
most serious problems of the current FOIA system are, One, the
absence of any genuinely serious consequences either for an
individual federal employee responding to an FOIA request or for
his or her agency, and, Two, the absence of a neutral arbiter with
authority to mediate disputes between agencies and requestors and
to oversee administration of the FOIA. "The Open Government Act of
2005" addresses both of these problems effectively and
realistically in my judgment.
the first problem, the act includes provisions providing that when
an agency misses a statutory FOIA deadline it is presumed to have
waived the right to assert various exemptions, except in cases
involving national security, personal privacy, proprietary
commercial information or other reasonable exceptions. The agency
can only overcome this waiver by presenting clear and convincing
evidence that it missed the deadline for good cause.
also provides enhanced authority for the Office of Special Counsel
to take disciplinary action against government officials found by a
court to have arbitrarily and capriciously denied a requestor
seeking information that should be disclosed. The act further
requires the Attorney General to inform the Office of Special
Counsel of such court findings and to report to Congress on those
findings. The Office of Special Counsel is also required to issue
an annual report to Congress on its response to such court
the second problem, the act establishes the Office of Government
Information Services within the Administrative Conference of the
United States, which is an independent agency and advisory body
established in 1964 to recommend improvements to Congress and
executive branch agencies. Most of the conference's more than 200
recommended changes have been adopted, at least in part.
Office of Government Information Services would function as an FOIA
ombudsman with authority to review agency policies and practices in
administering the FOIA, recommend policy changes and mediate FOIA
disputes between agencies and requestors.
While I am
particularly encouraged by these two provisions of the act, I
believe it contains many additional much-needed reforms in other
areas of the FOIA, including closure of the outsourced documents
loophole, requiring open government impact statements of proposed
legislation, changing the way agencies measure and report their
FOIA response times, and much else. In short, I believe this act
and its companion proposal to create a 16-member Open Government
Commission to study FOIA response delays and recommend needed
actions are among the most important pieces of legislation to be
considered by the 109TH Congress.
It is my
hope that those members of Congress who consider themselves of a
conservative persuasion will pay particular attention to "The Open
Government Act of 2005" 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 perhaps even more so in fighting waste, fraud and corruption in
government and in protecting public safety.
well-illustrated by these recent examples of reporting made
possible by the FOIA:
47 mph "hurricane:" Hurricane Frances made landfall more than 100
miles north of Miami-Dade County last year, but that didn't stop
thousands of residents in Florida's most populous county from
receiving nearly $28 million in federal disaster aid, according to
the Fort Lauderdale Sun-Sentinel. Using that state's FOIA, a
team of Sun-Sentinel reporters found that residents used their
relief checks to pay for things like 5,000 televisions allegedly
destroyed by Frances, as well as 1,440 air conditioners, 1,360 twin
beds, 1,311 washers and dryers and 831 dining room sets. All this
despite the fact Frances' top winds reached only 47 mph in the
aliens convicted of horrible crimes: Lots of people know that
federal law requires illegal aliens convicted of heinous crimes
like rape, murder, child molestation here in America to be deported
once they've served their jail terms. Unfortunately, it appears
that thousands such aliens may now be wandering a street near your
home or your child's school because federal immigration officials
failed to show up when these criminals were released from jail.
Even worse, according to Cox Newspapers Washington Bureau reporters
Eliot Jaspin and Julia Malone, theJustice Department won't release
a government database that could help journalists and private
citizens help officials find these aliens.
indeed fighting a global war on terrorism that puts unusual demands
on the FOIA system. Conservatives and liberals alike should always
remember that an ever expansive, ever-more intrusive government is
ultimately antithetical to the preservation of individual liberty
and democratic accountability in public affairs.