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