03/15/2005

New arbiter would make freedom of information requests fairer, experts say

By LAURIE KELLMAN
Associated Press Writer

WASHINGTON (AP) -- Setting up an independent arbiter of freedom-of-information disputes with the government would make appeals for the release of information more fair and less expensive, witnesses told a Senate panel Tuesday.

"It will more than pay for itself in diverting cases from the courts," Thomas M. Susman, a lawyer specializing in Freedom of Information Act cases, told the Senate subcommittee on terrorism, technology and homeland security.

The proposal is part of a bill Congress is considering that would strengthen the 1966 act in part by forcing government officials and agencies to respond more quickly to requests for information.

Sponsored by Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., the bill would create an ombudsman at the Administrative Conference of the United States to review agency compliance with FOIA requests and recommend alternatives to litigation.

Currently, disputes are resolved in court, with the Justice Department defending the agencies.

Creating a government office with oversight of the process would go a long way toward correcting the defensive posture of some agencies toward FOIA requests, sending the message from the government that "we are serious about open government requirements," Katherine M. Cary, division chief of the Open Records Division of the Texas Attorney General's Office, told the panel.

"FOIA isn't a game of us vs. them," Susman said.

The bill, sponsored in the House by Rep. Lamar Smith, R-Texas, would require agencies to give people seeking documents a tracking number within 10 days and to set up telephone or Internet systems allowing them to learn the status and estimated completion date.

Agencies that didn't respond within 20 days would lose all exemptions to FOIA requests except for national security, personal privacy, proprietary information or a ban in another law.

The open government issue took on new weight after the Sept. 11, 2001, attacks when the Bush administration set a higher threshold for FOIA disclosures. The White House advised agencies to make sure the information they released would not jeopardize national security.

But media outlets and others say that "national security" has become too common a reason for withholding information.

Walter Mears, a retired Associated Press newsman, told the subcommittee that the more information the government tries to keep secret, the greater the chance that what should be withheld will be leaked.

"Too often, security becomes an excuse for shielding embarrassing information and secrecy can conceal mismanagement or wrongdoing," Mears, former AP executive editor and vice president, told the panel.

"Overdone secrecy raises, rather than reduces, the risk that really vital secrets will be breached," Mears added. "If everything is classified, then my colleagues are going to go after everything."

"There are unfortunately many issues in the Senate Judiciary Committee which are divisive," Cornyn said. Protecting FOIA rights "is not one of them."

"No generation can afford to take these protections for granted, because they can quickly and easily be taken away. And once gone, they are difficult to get back," Leahy said.

The hearing comes during "Sunshine Week," a campaign for government openness spearheaded by more than 50 media companies, journalism groups, universities and the American Library Association.

The bill is S. 394.
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On the Net:
Sunshine in Government Initiative: http://www.sunshineingovernment.com

Senate subcommittee on terrorism, technology and homeland security:
http://www.judiciary.senate.gov/subcommittees/technology.cfm