House Subcommittee Passage of the OPEN Government Act

Today we meet to mark up H.R. 867, the OPEN Government Act, which makes improvements to the Freedom of Information Act (FOIA).  FOIA  was signed into law in July 1966 – over 40 years ago.  Enacted after 11 years of debate, FOIA established a statutory right of public access to executive branch information.  FOIA provides that any person has a right to obtain Federal agency records.  Originally, the Act included nine categories of information protected from disclosure, and Congress has added additional exemptions over time. 

Balancing the need for open government with the need to protect information vital to national security and personal privacy is a constant struggle.  Federal departments and agencies are operating in the post 9/11 information age and face 21st century security, information management, and resource challenges.  As we seek to achieve this balance, we must remember the words of Thomas Jefferson, who said, “Information is the currency of democracy.” 

FOIA is an essential tool to ensure that the citizens of this nation have access to information in the way Jefferson envisioned.  Over the years FOIA has been amended to keep pace with technology and requestor trends to ensure open access to information.  The legislation before us today, along with the President’s Executive Order issued late last year, are a continuing part of that process and will help bring FOIA into the 21st century.

The OPEN Government Act aims to strengthen FOIA by making a number of important changes.  The bill:

• Protects the FOIA fee status waiver for members of the news media who are not necessarily affiliated with a recognized news media organization;
• Allows for the recovery of attorney fees by clarifying the meaning of the term “substantially prevailed” to mean that the complainant has obtained a substantial part of their requested relief through a judicial or administrative order or if the pursuit of the claim was the catalyst for a voluntary change in position;
• Enhances the disciplinary actions available for arbitrary and capricious rejections of FOIA requests;
• Clarifies the 20-day time limit for agencies to act of requests;
• Requires a system of individualized tracking numbers be established to enhance the tracking of requests;
• Creates transparency in the use of (b)(3) exemptions;
• Enhances agency reporting requirements; and
• Establishes an Office of Government Information Services to act as a mediator or ombudsman as an alternative to litigation.

This is a solid piece of legislation and I encourage my colleagues to support its approval.  I also want to thank Mr. Waxman and Mr. Towns for working with me to get us to this point today.

  I would like to work with my colleagues as we move forward on an important matter regarding the Office of Government Information Services or ombudsman provision in Section 11 of the bill.  H.R. 867 and S. 394 both establish this office at the Administration Conference of the United States. 

At this time, however, the ACUS exists only on paper.  It was established in the 1960s and functioned until 1995.  It was reauthorized in 2004 through the Federal Regulatory Improvement Act but has yet to receive any funding whatsoever.  While the ACUS is precisely the type of organization that should house the Office of Government Information Services, it does not currently have the resources to do the job. 

It is absolutely critical that there be a viable alternative to litigation.  Right now, if a FOIA request is denied, the requester often has no option other than costly litigation in Federal court.  In order to facilitate Alternative Dispute Resolution there needs to be a workable, stable mechanism that provides a neutral arbiter.  This is central to the OPEN Government Act.  The ACUS must be funded and provided the necessary resources in order to function in this capacity, or we must find – or create – another entity that can fill this role. 

With more than 4 million FOIA requests each year, the Office of Government Information Services would need substantial resources.  Until that issue is resolved, the OPEN Government Act would not achieve its goal.  I intend to work with my colleagues to find a suitable solution to this concern.