Panel reviews system for public access to agency records

A Senate panel on Tuesday held its first hearing since 1992 to examine federal compliance with the 1966 Freedom of Information Act (FOIA). The hearing came during the nation's inaugural "Sunshine Week," which aims to celebrate and foster open government.

"Freedom of information and openness in government are among the most fundamental founding principles in our government," said Sen. John Cornyn, chairman of the Judiciary Immigration, Border Security and Citizenship Subcommittee. The Texas Republican introduced an open-government bill, S. 394, with Sen. Patrick Leahy, D-Vt., in February.

In a joint hearing with the Terrorism, Technology and Homeland Security Subcommittee, Cornyn and Leahy addressed the overarching concerns with the current process of requesting information from government agencies as the lawmakers pushed their pending legislation.

The measure aims to reduce agency response times, close loopholes in the law, create an independent post to audit FOIA compliance, and expand the fee waivers to all media, including the writers of online journals known as Web logs, or blogs. The proposed legislation also calls for the establishment of an Internet- or telephone-tracking service for people who request data.

In fiscal 2004, some 3.6 million FOIA requests were made, said Meredith Fuchs, general counsel at the National Security Archive. Under current law, agencies have 20 days to respond to FOIA requests. While the legislation would not change the timeframe, it attempts to reduce the backlog by implementing stronger compliance rules and disciplinary actions for failure to comply.

In a 2003 audit of 35 agencies by the archive, some backlogs went back 16 years. The audit uncovered the average response time of 55 days for the Commerce Department, even though it had pending requests 2,400 days old, according to Fuchs' written testimony. "Justice delayed is justice denied," she said in citing an adage.

Since FOIA was updated in 1996 to address digital communications, there has been a concern that homeland security legislation will trump citizens' rights with regard to access to information, Leahy said.

"National security is a very real and important concern," Fuchs said, but there is a "reflex of secrecy in the government right now."

There has been an increase in the amount of documents marked as classified since the 2001 terrorist attacks. In 2004, some 16 million documents were marked classified, up from 9 million in 2001, according to testimony that J. William Leonard, director of information security oversight, recently gave before a House committee.

"The problem in times like these is to judge what would or would not weaken America against terrorism," said retired AP reporter Walter Mears told the Senate panel. In reference to recent comments of President Bush to Russian President Vladimir Putin about the need for a free press in a democracy, Mears warned that "what was true at the Kremlin is also true in Washington."

Cornyn, Leahy and the panel agreed. "The enactment of Freedom of Information was a watershed moment for democracy," Leahy said. There is an expressed concern for the "dangerous trend toward over-classification."