Congressional Record: August 3, 2007 (Senate)]
[Page S10849-S10851
  Mr. LEAHY. [...]

                Updating the Freedom of Information Law

  Mr. President, I have some good news. We are reaching an agreement 
that should clear the way for Senate passage of the Openness Promotes 
Effectiveness in Our National Government Act, the OPEN Government Act, 
S. 849, which is a mouthful. That means we will have a much needed 
update of the Freedom of Information Act.
  This is comprehensive legislation which Senator Cornyn and I 
introduced earlier this year. A lot of people have not sat by idly 
while there has been obstruction on this floor. They have pushed for it 
and demanded it. I think of all of the editorial writers and letter 
writers who said: Let's do this. I will speak further if we do pass it.
  Every administration, Democratic or Republican, will tell you all the 
things they do right. Most administrations don't want to talk about the 
things that don't go right. It is usually the press and public 
citizens, individuals, who find things out through FOIA.
  Open government and transparent decisionmaking are bedrock American 
values. For more than four decades, FOIA has translated those great 
values into practice by guaranteeing access to government information. 
Just recently, we witnessed the effectiveness of FOIA in shedding light 
on the chronic abuse of National Security Letters, NSLs, at the FBI. 
This disclosure of government documents obtained under FOIA showed the 
FBI reported an intentional and willful violation of the laws governing 
NSLs to the President's Intelligence Oversight Board just before the 
2004 election, contrary to the impression created by testimony of 
Attorney General Gonzales.
  Although FOIA continues to demonstrate its great value in shedding 
light on bad government policies and abuses, this open government law 
is being hampered by excessive delays and lax FOIA compliance. Today, 
Americans who seek information under FOIA remain less likely to obtain 
it than during any other time in FOIA's 40-plus year history. According 
to the National Security Archive, an independent research institute, 
the oldest outstanding FOIA requests date back to 1989, before the 
collapse of the Soviet Union. In fact, more than a year after the 
President's FOIA executive order to improve agency FOIA performance, 
FOIA backlogs are at an all-time high. According to a recent report by 
the Government Accountability Office, federal agencies had 43 percent 
more FOIA requests pending and outstanding in 2006 than in 2002. In 
addition, the percentage of FOIA requestors who obtained at least some 
of the information that they requested from the Government declined by 
31 percent in 2006, according to a study by the Coalition of 
Journalists for Open Government. As the first major reform to FOIA in 
more than a decade, the OPEN Government Act would help to reverse these 
troubling trends and help to begin to restore the public's trust in 
their government. This bill also improves transparency in the Federal 
Government's FOIA process by:

[[Page S10851]]

  Restoring meaningful deadlines for agency action under FOIA;
  Imposing real consequences on Federal agencies for missing FOIA's 20-
day statutory deadline;
  Clarifying that FOIA applies to government records held by outside 
private contractors;
  Establishing a FOIA hotline service for all federal agencies; and
  Creating a FOIA Ombudsman to provide FOIA requestors and Federal 
agencies with a meaningful alternative to costly litigation.
  Let me also be clear about what this bill does not do. This bill does 
not harm or impede in any way the Government's ability to withhold or 
protect classified information. Classified, national security and 
homeland security-related information are all expressly exempt from 
FOIA's public disclosure mandate and this bill does nothing to alter 
these important exemptions. Senator Cornyn and I have been proposing an 
amendment to our own bill that would preserve the right of federal 
agencies to assert these and other FOIA exemptions, even if agencies 
miss the 20-day statutory deadline under FOIA.
  The OPEN Government Act is cosponsored by a bipartisan group of 14 
Senators, including the bill's lead Republican cosponsor, Senator 
Cornyn. This bill is also endorsed by more than 115 business, public 
interest, and news organizations from across the political and 
ideological spectrum, including the American Library Association, the 
U.S. Chamber of Commerce,, Public Citizen, the 
Republican Liberty Caucus, the Sunshine in Government Initiative and 
the Vermont Press Association. I thank all of the cosponsors of this 
bill for their commitment to open government. I also thank the many 
organizations that have endorsed the OPEN Government Act for their 
support of this legislation.
  I especially want to thank the concerned citizens who have not sat 
idly by while some have sought to delay and obstruct Senate 
consideration of this measure. Instead, knowing the importance of this 
measure to the American people's right to know, they have demanded 
action and refuse to take no for an answer. That is what led to this 
breakthrough and to the commitment of Senate opponents of our FOIA bill 
to come around.
  The OPEN Government Act is a good-government bill that Democrats and 
Republicans, alike, can and should work together to enact. For more 
than 2 years, I have worked on a bipartisan basis to pass this 
legislation and I remain committed to work with any Senator, from 
either party, who is serious about restoring transparency, trust and 
accountability to our government. Open government should not be a 
Democratic issue or a Republican issue. It is an American issue and an 
American value.
  I am glad to announce to today that with Senator Cornyn's help we 
have come to an understanding with Senators Kyl and Bennett that should 
lead to Senate passage before the August recess.
  I ask unanimous consent that a recent USA Today editorial entitled, 
``Our view on your right to know: Endless delays mar requests for 
government information,'' be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                            [From USA Today]

    Our View on Your Right To Know: Endless Delays Mar Requests for 
                         Government Information

       Federal agencies are supposed to respond to requests for 
     information within 20 business days. In some cases, 20 years 
     has been more like it. A sampling of pending queries:
       In 1987, lawyers for the Church of Scientology asked the 
     State Department for information about whether the department 
     had been gathering information about the church or about 
       In 1988, steelmaker USX Corp. requested government data on 
     the steel industry in Luxembourg.
       And in 1989, the Armenian Assembly of America sought 
     documents on the Armenian genocide that occurred more than 70 
     years earlier during World War I.
       What these queries have in common is that they are among 
     thousands of requests that have been sandbagged, stonewalled 
     or lost by government agencies.
       Congress passed the Freedom of Information Act in 1966 to 
     give citizens and taxpayers access to government-held records 
     that they've paid to have gathered. But 40 years later, 
     scores of agencies still can't--or won't--get it right.
       Compliance with the 20-day deadline is ``an exception 
     rather than a standard practice,'' according to a report this 
     month from the Knight Foundation and the National Security 
     Archive watchdog group.
       Twelve agencies, ranging from the Defense Department to the 
     Environmental Protection Agency, have backlogs of 10 years or 
     more. Only one-fifth of federal agencies are in compliance 
     with a 10-year-old law that was supposed to put so much 
     government information on the Internet that most FOIA 
     requests would no longer be needed.
       Long-overdue reforms that sailed through the House in March 
     with a wide bipartisan majority have been stalled in the 
     Senate--largely because of opposition from Sen. Jon Kyl, R-
     Ariz.--despite a unanimously favorable vote by the Judiciary 
       The ugly reality is that the freedom-of-information law has 
     been sabotaged for years by politicians and bureaucrats 
     trying to make it hard, if not impossible, for citizens to 
     obtain information to which they're entitled.
       The pending reforms would restore meaningful deadlines for 
     agency action and impose serious consequences on agencies 
     that miss those deadlines. The bill also would establish a 
     freedom-of-information hotline to enable citizens to track 
     the status of their requests. And it seeks to repeal a 
     perverse incentive that encourages agencies to delay 
     compliance with information requests until just before a 
     court decision that is going to be favorable to the 
       Of the more than 500,000 freedom-of-information requests 
     filed every year, over 90% are from private citizens, 
     businesses or state and local agencies seeking information 
     that's important to them and that in most cases they are 
     entitled to.
       Critics of the legislation object to getting tough on 
     agencies that flout the law and claim that some of the 
     proposed reforms would force the disclosure of sensitive 
     information. If so, these are issues that should be thrashed 
     out in Congress, not used as a club to stall consideration of 
     this long-overdue legislation. The public's right to know is 
     too important to remain on hold.

[Congressional Record: August 3, 2007 (Senate)]
[Page S10986-S10991]
                      OPEN GOVERNMENT ACT OF 2007

  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 127, S. 849.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 849) to promote accessibility, accountability, 
     and openness in Government by strengthening section 552 of 
     title V, United States Code (commonly referred to as the 
     Freedom of Information Act), and for other purposes.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. LEAHY. Mr. President, I am pleased that the Senate has passed the 
Leahy-Cornyn Openness Promotes Effectiveness in our National Government 
Act'' (the ``OPEN Government Act''), S. 849, before adjourning for the 
August recess. This important Freedom of Information Act legislation 
will strengthen and reinvigorate FOIA for all Americans.
  For more than four decades, FOIA has translated the great American 
values of openness and accountability into practice by guaranteeing 
access to government information. The OPEN Government Act will help 
ensure that these important values remain a cornerstone of our American 
  I commend the bill's chief Republican cosponsor, Senator John Cornyn, 
for his commitment and dedication to passing FOIA reform legislation 
this year. Since he joined the Senate 5 years ago, Senator Cornyn and I 
have worked closely together on the Judiciary Committee to ensure that 
FOIA and other open government laws are preserved for future 
generations. The passage of the OPEN Government Act is a fitting 
tribute to our bipartisan partnership and to openness, transparency and 
accountability in our government.
  I also thank the many cosponsors of this legislation for their 
dedication to open government and I thank the Majority Leader for his 
strong support of this legislation. I am also appreciative of the 
efforts of Senator Kyl and Senator Bennett in helping us to reach a 
compromise on this legislation, so that the Senate could consider and 
pass meaningful FOIA reform this legislation before the August recess.
  But, most importantly, I especially want to thank the many concerned 
citizens who, knowing the importance of this measure to the American 
people's right to know, have demanded action on this bill. This bill is 
endorsed by more than 115 business, public interest, and news 
organizations from across the political and ideological spectrum, 
including the American Library Association, the U.S. Chamber of 
Commerce,, Public Citizen, the Republican Liberty 
Caucus, the Sunshine in Government Initiative and the Vermont Press 
Association. The invaluable support of these and many other 
organizations is what led the opponents of this bill to come around and 
support this legislation.

[[Page S10987]]

  As the first major reform to FOIA in more than a decade, the OPEN 
Government Act will help to reverse the troubling trends of excessive 
delays and lax FOIA compliance in our government and help to restore 
the public's trust in their government. This bill will also improve 
transparency in the Federal Government's FOIA process by:
  Restoring meaningful deadlines for agency action under FOIA;
  Imposing real consequences on federal agencies for missing FOIA's 20-
day statutory deadline;
  Clarifying that FOIA applies to government records held by outside 
private contractors;
  Establishing a FOIA hotline service for all federal agencies; and
  Creating a FOIA Ombudsman to provide FOIA requestors and federal 
agencies with a meaningful alternative to costly litigation.
  Specifically, the OPEN Government Act will protect the public's right 
to know, by ensuring that anyone who gathers information to inform the 
public, including freelance journalist and bloggers, may seek a fee 
waiver when they request information under FOIA. The bill ensures that 
federal agencies will not automatically exclude Internet blogs and 
other Web-based forms of media when deciding whether to waive FOIA 
fees. In addition, the bill also clarifies that the definition of news 
media, for purposes of FOIA fee waivers, includes free newspapers and 
individuals performing a media function who do not necessarily have a 
prior history of publication.
  The bill also restores meaningful deadlines for agency action, by 
ensuring that the 20-day statutory clock under FOIA starts when a 
request is received by the appropriate component of the agency and 
requiring that agency FOIA offices get FOIA requests to the appropriate 
agency component within 10 days of the receipt of such requests. The 
bill allows federal agencies to toll the 20-day clock while they are 
awaiting a response to a reasonable request for information from a FOIA 
requester on one occasion, or while the agency is awaiting 
clarification regarding a FOIA fee assessment. In addition, to 
encourage agencies to meet the 20-day time limit, the bill prohibits an 
agency from collecting search fees if it fails to meet the 20-day 
deadline, except in the case of exceptional circumstances as defined by 
the FOIA statute.
  The bill also addresses a relatively new concern that, under current 
law, federal agencies have an incentive to delay compliance with FOIA 
requests until just before a court decision that is favorable to a FOIA 
requestor. The Supreme Court's decision in Buckhannon Board and Care 
Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 
U.S. 598 (2001), eliminated the ``catalyst theory'' for attorneys' fees 
recovery under certain federal civil rights laws. When applied to FOIA 
cases, Buckhannon precludes FOIA requesters from ever being eligible to 
recover attorneys fees under circumstances where an agency provides the 
records requested in the litigation just prior to a court decision that 
would have been favorable to the FOIA requestor. The bill clarifies 
that Buckhannon does not apply to FOIA cases. Under the bill, a FOIA 
requester can obtain attorneys' fees when he or she files a lawsuit to 
obtain records from the government and the government releases those 
records before the court orders them to do so. But, this provision 
would not allow the requester to recover attorneys' fees if the 
requester's claim is wholly insubstantial.
  To address concerns about the growing costs of FOIA litigation, the 
bill also creates an Office of Government Information Services in the 
National Archives and creates an ombudsman to mediate agency-level FOIA 
disputes. In addition the bill ensures that each federal agency will 
appoint a Chief FOIA Officer, who will monitor the agency's compliance 
with FOIA requests, and a FOIA Public Liaison who will be available to 
FOIA to resolve FOIA related disputes.
  Finally, the bill does several things to enhance the agency reporting 
and tracking requirements under FOIA. Tracking numbers are not required 
for FOIA requests that are anticipated to take ten days or less to 
process. The bill creates a tracking system for FOIA requests to assist 
members of the public and the media. The bill also establishes a FOIA 
hotline service for all federal agencies, either by telephone or on the 
Internet, to enable requestors to track the status of their FOIA 
  In addition, the bill also clarifies that FOIA applies to agency 
records that are held by outside private contractors, no matter where 
these records are located. And to create more transparency about the 
use of statutory exemptions under FOIA, the bill ensures that FOIA 
statutory exemptions that are included in legislation enacted after the 
passage of this bill clearly cite the FOIA statute and clearly state 
the intent to be exempt from FOIA.
  The Freedom of Information Act is critical to ensuring that all 
American citizens can access information about the workings of their 
government. But, after four decades this open government law needs to 
be strengthened. I am pleased that the reforms contained in the OPEN 
Government Act will ensure that FOIA is reinvigorated so that it works 
more effectively for the American people.
  I am also pleased that, by passing this important reform legislation 
today, the Senate has reaffirmed the principle that open government is 
not a Democratic issue or a Republican issue. But, rather, it is an 
American issue and an American value. I commend all of my Senate 
colleagues, on both sides of the aisle, for unanimously passing this 
historic FOIA reform measure. I hope that the House of Representatives, 
which overwhelmingly passed a similar measure earlier this year, will 
promptly take up and pass this bill and that the President will then 
promptly sign it into law.
  Mr. KYL. Mr. President, I rise today to comment on S. 849, the OPEN 
Government Act. As a result of negotiations between Senators Cornyn, 
Leahy, and me, we have reached an agreement on an amendment to this 
bill that addresses my concerns about the legislation while keeping 
true to the bill's intended purposes. When this bill was marked up in 
the Senate Judiciary Committee several months ago, I filed a number of 
amendments intended to address problems with the bill. Senator Leahy 
asked me at the mark up to withhold offering my amendments in favor of 
addressing my concerns through negotiations with him and with Senator 
Cornyn. I agreed to do so, and later submitted a statement of 
additional views to the committee report for this bill that described 
the nature of some of my concerns, and that included as an attachment 
the Justice Department's lengthy Views Letter on this bill. After 
follow-up meetings with the Justice Department and Office of Management 
and Budget to elucidate the nature of some of those agencies' concerns 
and to try to come up with compromise language, negotiations among 
members of the Senate began. I am pleased to report that those 
negotiations have proved fruitful. Our negotiations have benefited from 
extensive assistance from the Justice Department and other parts of the 
executive branch, as well as from the input of various journalists' 
organizations. While none of these parties has gotten exactly what it 
wants, I do believe that we now have a bill that strikes the right 
balance with regard to FOIA--a bill that will make FOIA work more 
smoothly and efficiently.
  Allow me to describe some of the changes that my amendment will make 
to the underlying bill. Section three of the original bill broadened 
the definition of media requesters to include anyone who ``intends'' to 
broadly disseminate information. My concern, which was also expressed 
by the Justice Department, was that in the age of the internet, anyone 
can plausibly state that he ``intends'' to broadly disseminate the 
information that he obtains through FOIA. The media-requester category 
is important because requesters who receive this status are exempt from 
search fees. Search fees are one of the principal tools that agencies 
use to encourage requesters to clarify and sharpen their requests. When 
someone makes a broad and vague request, the agency will come back with 
an estimate of the cost of conducting such a search. Often, the 
individual will then sharpen that request. This saves the agency time 
and the requester money. According to some FOIA administrators, 
legitimate media requesters rarely make vague

[[Page S10988]]

requests. These requesters usually know what they want and they want to 
get it quickly. But if virtually any requester could be exempted from 
search fees by claiming that he intends to widely disseminate the 
information, search fees would no longer serve as a tool for 
encouraging requesters to focus their requests. Overall, this would 
waste FOIA resources and slow down processing of all requests. Such a 
result would not be in anyone's interest.
  The compromise language included in my amendment clarifies the 
definition of media requester in a way that protects internet 
publications and freelance journalists but that still preserves 
commonsense limits on who can claim to be a journalist. At the 
suggestion of some media representatives, we have incorporated into the 
amendment the definition of media requester that was announced by the 
DC Circuit in National Security Archive v. U.S. Department of Defense. 
880 F.2d 1381 (D.C. Cir. 1989). That definition focuses on public 
interest in the collected information, the use of editorial skill to 
process that information into news, and the distribution of that news 
to an audience. It would appear in my view to protect publishers of 
newsletters and other smaller news sources, as well as, obviously, the 
types of organizations described in that opinion. On the other hand, 
given that this construction of the term news media as used in FOIA has 
been in effect for 17 years, I do not think that anyone can reasonably 
fear that codifying it will turn the world upside down. I was amused to 
see that Judge Ginsburg's analysis of the statute's definition of news 
media relied in part on conflicting legislative statements made by 
Senators Hatch and Leahy, two members with whom I currently serve on 
the Senate Judiciary Committee, regarding the meaning of the 1986 
amendments to FOIA. By incorporating a judicially crafted definition of 
news media, I believe that my amendment spares the courts the indignity 
of being compelled to parse conflicting Senate floor statements in 
order to divine the meaning of that term.
  The remainder of my amendment's changes to section 3 codify language 
that has been adopted by some administrative agencies to clarify who is 
a media requester. Other than stylistic edits, that agency language has 
been modified in my amendment only to make express that news-media 
entities include periodicals that are distributed for free to the 
public. This will protect the fee status of the numerous free 
newspapers that have become common in American cities in recent years. 
The agency language codified here also extends express protection to 
freelance journalists.
  Overall, this language should guarantee news-media status for new 
electronic formats and for anyone who would logically be considered a 
journalist, even when that journalist's method of news distribution 
takes on new means and forms. But the language should also prevent 
gamesmanship by individuals who cannot logically be considered 
journalists but who are willing to assert that they are journalists in 
order to avoid paying search fees.
  The modified bill also makes important changes to section 6 of the 
bill. The original version of this section eliminated certain important 
FOIA exemptions as a penalty for an agency's failure to comply with 
FOIA's 20-day response deadline. I commented at length on this 
provision of the bill at the beginning of my additional views to the 
committee report for the bill. This provision was far and away the most 
problematic provision of the original bill and I am relieved that 
Senators Leahy and Cornyn have agreed to abandon this approach to 
deadline enforcement.
  My amendment adopts a modified version of an approach to deadline 
enforcement that was suggested by Senators Cornyn and Leahy. Their 
approach denies search fees to agencies that do not meet FOIA 
deadlines. I have modified my colleagues' proposal by including an 
exception allowing an agency to still collect search fees if a delay in 
processing the request was the result of unusual or exceptional 
circumstances. These exceptions have been part of FOIA for many years 
now and have a reasonably well-known meaning. I expect that these 
exceptions will account for virtually all of the cases where an agency 
cannot reasonably be expected to process a particular FOIA request 
within the paragraph (6) time limits.
  Preserving this type of flexibility is important. A penalty that 
seriously punishes an agency, which I believe that denying search fees 
would do, would likely backfire if the penalty did not account for 
complex or broad requests that cannot reasonably be processed within 
the FOIA deadlines. If the penalties for not processing a request 
within the deadlines are harsh and include no exceptions, the agency 
will process every request within 20 or 30 days. It will simply do a 
sloppy job. That would not improve the operation of the FOIA and would 
not be in anyone's interest.
  The original bill also made FOIA's 20-day clock run from the time 
when any part of a government agency or department received a FOIA 
request. Again, the modified bill exempts FOIA requesters from search 
fees if the 20-day deadline is not met and no unusual or exceptional 
circumstances are present. These provisions in combination would have 
created a perverse incentive for a FOIA requester to ignore the 
addressing instructions on an agency's website and send his request to 
some distant outpost of an agency or department, in the hope that doing 
so would prevent the agency from meeting the 20-day deadline and the 
requester would be exempted from search fees. I would not expect more 
than a very small portion of FOIA requesters to engage in such 
gamesmanship. But given the large number of individuals and 
institutions that make FOIA requests, it is inevitable that some bad 
apples would abuse the rules if Congress were to create an incentive to 
do so.
  My amendment makes the FOIA deadline run only from the time when the 
appropriate component of an agency receives the request. To address 
concerns that an agency might unreasonably delay in routing a request 
to the appropriate component, I have added language providing that the 
deadline shall begin to run from no later than ten days after some 
designated FOIA component receives the request. I think that it is 
reasonable to expect that requesters send their requests to some 
designated FOIA-receiving component of an agency, and I think that it 
is reasonable to expect that once a FOIA component of the agency gets 
the request, it will expeditiously route that request to the 
appropriate FOIA component.
  My amendment also changes the bill's standard for awarding attorney's 
fees to FOIA requesters when litigation is ended short of a judgement 
or court-approved settlement. The original bill would have entitled a 
requester to fees whenever an agency voluntarily or unilaterally 
changed its position and handed over the requested information after 
litigation had commenced. As I noted in my statement of additional 
views to the committee report, I am concerned that such a standard 
would discourage agencies from releasing documents in situations where 
the agency is fully within its rights to withhold a record--for 
example, because some clear exception applies--but senior personnel at 
the agency decide to produce the documents anyway. To impose fees in 
such a situation would be to adopt a rule of no good deed goes 
unpunished. It would also likely discourage some disclosures. If an 
exemption clearly applied to the records in question, the only way that 
the agency could avoid being assessed fees would be to continue 
litigating. Also, in my view attorney's fee shifting should only reward 
litigation that was meritorious. A baseless lawsuit should not be 
rewarded with attorney's fees. There is enough bad lawyering around 
already. The government should not be paying litigants for bringing 
claims that lack legal merit.

  On the other hand, Senator Cornyn has presented compelling arguments 
that since the time when the Buckhannon standard was extended to FOIA, 
some agencies have begun denying clearly meritorious requests and then 
unilaterally settling the case on the eve of trial to avoid paying 
attorney's fees. Obviously, such behavior should not be encouraged. Or 
at the very least, the requester should be compensated for the legal 
expense of forcing agency compliance with a meritorious request. 
Senator Cornyn has

[[Page S10989]]

made a strong case that the current standard denies the public access 
to important information about the operations of the Federal 
  In the spirit of compromise, and out of deference to Senator Cornyn's 
arguments and persistence, I have agreed to incorporate language into 
my amendment that does not fully address my concerns about this part of 
the bill and that is very generous to FOIA requesters. The language of 
the amendment entitles a requester to fees unless the court finds that 
the requester's claims were not substantial. This is a pretty low 
standard. It would allow the requester to be deemed a prevailing party 
for fee-assessment purposes even if the government's litigating 
position was entirely reasonable--or even if the government's arguments 
were meritorious and the government would have won had the case been 
litigated to a judgment.
  Substantiality is a test that is employed in the Federal courts to 
determine whether a federal claim is adequate to justify retaining 
jurisdiction over supplemental or other State law claims. It is 
generally understood to require only that the plaintiff's complaint not 
be clearly nonmeritorious on its face and not be clearly precluded by 
controlling precedent. The classic and most-quoted statement of the 
substantiality standard appears to be that in the Supreme Court's 
decision in Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 
(1933), in which Justice Sutherland explained that a claim may be 
``plainly unsubstantial either because obviously without merit, or 
because its unsoundness so clearly results from the previous decisions 
of this court as to foreclose the subject and leave no room for the 
inference that the questions sought to be raised can be the subject of 
controversy.'' The same principle is expressed through different words 
in Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974), 
as whether the claim is ``so insubstantial, implausible, foreclosed by 
prior decisions of this Court, or otherwise completely devoid of merit 
as not to involve a Federal controversy,'' and in Kaz Manufacturing v. 
Chesebrough-Pond's, Inc., 211 F.Supp. 815, 822 (S.D.N.Y. 1962), as 
whether ``it cannot be said that the claim is obviously without merit 
or that its invalidity clearly results from the previous decisions of 
this court or, where the claim is pretty clearly unfounded.''
  One aspect of this test that makes it well-suited to evaluating 
attorney's fee requests is that the ``insubstantiality'' of a claim is 
a quality ``which is apparent at the outset.'' Rosado v. Wyman, 397 
U.S. 397, 404 (1970). It is a standard that courts should be able to 
apply without further factual inquiry into the nature of a complaint. 
It thus addresses one of the Supreme Court's major concerns in the 
Buckhannon case, that ``a request for attorney's fees should not result 
in a second major litigation.''
  Part of the very definition of the substantiality test is that courts 
can evaluate the complaint on its pleadings or without resolving 
factual disputes. A claim is substantial so long as ``it cannot be said 
that [it] is obviously without merit, or clearly foreclosed by prior 
Supreme Court decisions, or a matter that should be dismissed on the 
pleadings alone without the presentation of some evidence.'' Rumbaugh 
v. Winifrede Railroad Company, 331 F.2d 530, 539-40 (4th Cir. 1964). 
``The substantiality of the Federal claim is ordinarily determined on 
the basis of the pleadings''--on whether ``it appears that the Federal 
claim is subject to dismissal under F.R.Civ.P. 12(b)(6) or could be 
disposed of on a motion for summary judgment under F.R.Civ.P. 56.'' 
Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976). 
Other cases articulating these principles are Kavit v. A.L. Stam & Co., 
491 F.2d 1176, 1179-80 (2d Cir. 1974) (Friendly, J.); Scholz Homes, 
Inc. v. Maddox, 379 F.2d 84, 87 (6th Cir. 1967); Smith v. Metropolitan 
Development Housing Agency, 857 F.Supp. 597, 601 (M.D. Tenn. 1994); In 
the Matter of Union National Bank & Trust Company of Souderton, 
Pennsylvania, 298 F.Supp. 422, 424 (E.D. Pa. 1969).
  I hope that these comments on my understanding of the law in this 
area are of assistance to courts and litigants who will now be forced 
to adapt to the application of the substantiality test to FOIA fee 
shifting. Obviously this transition would be easier had we adopted a 
test more familiar to this area of the law, but the exigencies of 
legislative compromise have precluded such an outcome. For some recent 
and very thorough examples of how a substantiality analysis is actually 
conducted, courts and litigants should also look to Judge Williams's 
panel opinion in Decatur Liquors, Inc. v. District of Columbia, 478 
F.3d 360, 363-63 (D.C. Cir. 2007), and to the Sixth Circuit's opinion 
in Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1505-07 (6th Cir. 
  Again, I would have preferred that the Senate select some standard 
that protects from fee assessments an agency that releases information 
when the law clearly applied an exemption to the requested information. 
Agencies will still be protected by the discretionary factors 
considered in the fee-shifting system, but the lacks-a-reasonable-
legal-basis factor is not always controlling and does not create a 
guaranteed safe harbor. I fear that the standard that we adopt today 
will lead some agency employees to withhold information that they would 
otherwise be inclined to release out of concern that unilaterally 
releasing the information would make the agencies subject to fee 
  I would also note that the substantiality test would have been 
unacceptable were this a fee-shifting statute that assessed fees 
against private parties. If a private party adopts a meritorious 
position in litigation but then unilaterally settles, the Federal 
Government could not rightfully force that party to pay attorney's 
fees. The occasional unfairness of this provision--the fact that it 
will sometimes require the payment of fees to a party whose litigation 
position lacked merit--is tolerable only because the only party that 
will be forced to pay fees under this provision even when that party 
was in the right is the government.
  I would also like to emphasize for the legislative record that I had 
originally proposed formulating this standard as ``provided that the 
complainant's claim is substantial''--and I would have been equally 
content with language along the lines of ``unless the complainant's 
claim is insubstantial.'' The double negative in the amendment was not 
my proposal and I accept no responsibility for that grammatical 
infraction. It is only because others have insisted on that formulation 
and I can perceive no substantive difference between ``not 
insubstantial'' and ``substantial'' that the double negative appears in 
my amendment.
  My amendment also makes one other important change to section 4 of 
the bill. The original bill allowed a requester to be deemed a 
prevailing party if the requester obtained relief through ``an 
administrative action.'' Agency administrative appeals of FOIA 
decisions do not require lawyers, and FOIA requesters should not be 
compensated for or encouraged to bring lawyers into these proceedings. 
An agency appeal simply means that the plaintiff asks the agency to 
reconsider its denial of a request. Every agency has an appeal 
procedure in which it assigns the case to another agency employee 
trained in FOIA who then reevaluates the request. These appeals are 
most often successful when the plaintiff provides more information 
about his request. Legal arguments are not appropriate to these 
appeals. There is no reason to bring attorneys-fee shifting into this 
stage of FOIA. Thus my amendment eliminates the fee-shifting section's 
reference to relief obtained through an administrative action.
  Mr. CORNYN. Mr. President, since coming to the U.S. Senate in 2002, I 
have made it my mission to bring a little ``Texas sunshine'' to 
  The State of Texas has one of the strongest laws expanding the right 
of every citizen to access records documenting what the government is 
up to. As attorney general of Texas, I was responsible for enforcing 
Texas's open government laws. I have always been proud that Texas is 
known for having one of the strongest and most robust freedom of 
information laws in the country.
  Unfortunately, the Sun doesn't shine as brightly in Washington. The 
Federal Freedom of Information Act, or FOIA, which was signed into law 
41 years ago, was designed to guarantee public access to records that 
explain what the Government is doing.
  Some Federal agencies are taking years to even start working on 
requests. Far too often when citizens

[[Page S10990]]

seek records from our Government, they are met with long delays, 
denials and difficulties. Federal agencies can routinely and repeatedly 
deny requests for information with near impunity. Making the situation 
worse, requestors have few alternatives to lawsuits for appealing an 
agency's decision.
  And when requestors do sue agencies, the deck is stacked in the 
Government's favor.
  Courts have ruled that requestors cannot recover legal fees from 
agencies who improperly withhold information until a judge rules for 
the requestor. That means an agency can withhold documents without any 
consequences until the day before a judge's ruling. Then the agency can 
suddenly send a box full of documents, render the lawsuit moot and 
leave the requestor with a hefty legal bill. And the agency gets away 
  In the meantime, the delay can keep mismanagement and wasteful 
practices hidden and unfixed. Documents obtained through FOIA helped 
reporters for Knight Ridder--now part of McClatchy Company--show the 
public that veterans who fought bravely for our country have trouble 
obtaining the medical benefits they deserve upon returning home. 
Thousands died waiting for their benefits, many more received wrong 
information. Legal fees alone topped $100,000 along with the time and 
effort. Few citizens have such time and budgets.
  To address problems of long delays and strengthen the ability of 
every citizen to know what its government is up to, Senator Patrick 
Leahy and I introduced bipartisan legislation to reform FOIA.
  There are, unfortunately, many issues in the Senate Judiciary 
Committee that have become partisan and divisive. So it is especially 
gratifying to be able to have worked so closely with Chairman Leahy on 
an issue as important and as fundamental to our Nation as openness in 
  Today we are making history by passing the Openness Promotes 
Effectiveness in our National Government Act of 2007, also known as the 
OPEN Government Act.
  I am grateful to Senator Leahy and to his staff for all their hard 
work on these issues of mutual interest and national interest. A 
special thanks to Lydia Griggsby, Senator Leahy's counsel, for her 
diligence and hard work. And I would like to thank and to commend 
Senator Leahy for his decades-long commitment to freedom of 
  I also want to especially thank Senators Kyl and Bennett and their 
respective staff members, Joe Matal and Shawn Gunnarson for their good 
faith efforts to resolve differences and move this bill out of the 
Senate. We couldn't have done it without their cooperation and fair-
  Open-government reforms should be embraced by conservatives, 
liberals, and anyone who believes in the freedom and the dignity of the 
  Passage of this important legislation is a victory for the American 
people. From my vantage point here in Washington, DC, it is about 
holding accountable the politicians who continue to grow the size and 
scope of the Federal Government. And it is about holding accountable 
the bureaucrats who populate the Federal Government's ever-expanding 
reach over individual liberty.
  This legislation contains important congressional findings to 
reiterate and reinforce our belief that FOIA establishes a presumption 
of openness, and that our government is based not on the need to know, 
but upon the fundamental right to know. In addition, the act contains 
over a dozen substantive provisions, designed to achieve four important 
objectives: (1) to strengthen FOIA and close loopholes, (2) to help 
FOIA requestors obtain timely responses to their requests, (3) to 
ensure that agencies have strong incentives to act on FOIA requests in 
a timely fashion, and (4) to provide FOIA officials with all of the 
tools they need to ensure that our government remains open and 
  The OPEN Government Act is not just pro-openness, pro-accountability, 
and pro-accessibility--it is also pro-Internet. It requires government 
agencies to establish a hotline to enable citizens to track their FOIA 
requests, including Internet tracking, and it grants the same 
privileged FOIA fee status currently enjoyed by traditional media 
outlets to bloggers and others who publish reports on the Internet.
  The act has the support of business groups, such as the U.S. Chamber 
of Commerce and National Association of Manufacturers, media groups and 
more than 100 advocacy organizations from across the political 
spectrum. Without their help, this legislation would have been 
  We owe it to all Americans to help them know what their government is 
up to and to make our great democracy even stronger and more 
accountable to its citizens
  Mr. REID. Mr. President, I wish the record to reflect how much I 
appreciate the work of Senator Leahy on this very important matter. The 
Freedom of Information Act is something that has needed amending for 
some time, and I am happy we are able to do it tonight.
  I ask unanimous consent that the amendment at the desk be considered 
and agreed to, the bill, as amended, be read three times, passed, and 
the motion to reconsider be laid upon the table; that any statements be 
printed in the Record, with no intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 2655) was agreed to, as follows:

       The bill is amended as follows:
       (a) News-Media Status.--At page 4, strike lines 4 though 15 
     and insert:
       ``The term ``a representative of the news media'' means any 
     person or entity that gathers information of potential 
     interest to a segment of the public, uses its editorial 
     skills to turn the raw materials into a distinct work, and 
     distributes that work to an audience. The term ``news'' means 
     information that is about current events or that would be of 
     current interest to the public. Examples of news-media 
     entities are television or radio stations broadcasting to the 
     public at large and publishers of periodicals (but only if 
     such entities qualify as disseminators of ``news'') who make 
     their products available for purchase by or subscription by 
     or free distribution to the general public. These examples 
     are not all-inclusive. Moreover, as methods of news delivery 
     evolve (for example, the adoption of the electronic 
     dissemination of newspapers through telecommunications 
     services), such alternative media shall be considered to be 
     news-media entities. A freelance journalist shall be regarded 
     as working for a news-media entity if the journalist can 
     demonstrate a solid basis for expecting publication through 
     that entity, whether or not the journalist is actually 
     employed by the entity. A publication contract would present 
     a solid basis for such an expectation; the Government may 
     also consider the past publication record of the requester in 
     making such a determination.''.
       (b) Attorneys' Fees.--At page 5, strike lines 1 through 7 
     and insert:
       ``(I) a judicial order, or an enforceable written agreement 
     or consent decree; or
       (II) a voluntary or unilateral change in position by the 
     agency, provided that the complainant's claim is not 
       (c) Commencement of 20-Day Period and Tolling.--At page 6, 
     lines 1 through 7 and insert:
       ``(1) In General.--Section 552(a)(6)(A)(i) of title 5, 
     United States Code, is amended by striking ``determination;'' 
     and inserting:

     ``determination. The 20-day period shall commence on the date 
     on which the request is first received by the appropriate 
     component of the agency, but in any event no later than ten 
     days after the request is first received by any component of 
     the agency that is designated in the agency's FOIA 
     regulations to receive FOIA requests. The 20-day period shall 
     not be tolled by the agency except (I) that the agency may 
     make one request to the requester for information and toll 
     the 20-day period while it is awaiting such information that 
     it has reasonably requested from the FOIA requester or (II) 
     if necessary to clarify with the requester issues regarding 
     fee assessment. In either case, the agency's receipt of the 
     requester's response to the agency's request for 
     information or clarification ends the tolling period;''.
       (d) Compliance With Time Limits.--At page 6, strike line II 
     and all that follows through page 7, line 4, and insert:
       ``(b) Compliance With Time Limits.--
       (1)(A) Section 552(a)(4)(A) of title 5, United States Code, 
     is amended by adding at the end the following:
       ``(viii) An agency shall not assess search fees under this 
     subparagraph if the agency fails to comply with any time 
     limit under paragraph (6), provided that no unusual or 
     exceptional circumstances (as those terms are defined for 
     purposes of paragraphs (6)(B) and (C), respectively) apply to 
     the processing of the request.''.
       (B) Section 552(a)(6)(B)(ii) of title 5, United States 
     Code, is amended by inserting between the first and second 
     sentences the following:

     ``To aid the requester, each agency shall make available its 
     FOlA Public Liaison, who shall assist in the resolution of 
     any disputes between the requester and the agency.''
       (e) Status of Requests.--At page 7:
       (1) strike lines 17 through 22 and insert:

[[Page S10991]]

       ``(A) establish a system to assign an individualized 
     tracking number for each request received that will take 
     longer than ten days to process and provide to each person 
     making a request the tracking number assigned to the request; 
     and'' .
       (2) at line 23, strike ``(C)'' and insert ``(B)''.
       (f) Clear Statement for Exemptions.--At page 8, strike line 
     19 and all that follows through the end of the section and 
       ``(A) if enacted prior to the date of enactment of the OPEN 
     Government Act of 2007, requires that the matters be withheld 
     from the public in such a manner as to leave no discretion on 
     the issue, or establishes particular criteria for withholding 
     or refers to particular types of matters to be withheld; or
       ``(B) if enacted after the date of enactment of the OPEN 
     Government Act of 2007, specifically cites to the Freedom of 
     Information Act.''.
       (g) Private Records Management.--At page 13, lines 14 
     through 15, strike ``a contract between the agency and the 
     entity.'' and insert ``Government contract, for the purposes 
     of records management.''.
       (h) Policy Reviews, Audits, and Chief FOIA Officers and 
     Public Liaisons.--Strike section 11 and insert the following:


       ``(a) In General.--Section 552 of title 5, United States 
     Code, is amended by adding at the end the following:
       ``(h) There is established the Office of Government 
     Information Services within the National Archives and Records 
     Administration. The Office of Government Information Services 
     shall review policies and procedures of administrative 
     agencies under section 552, shall review compliance with 
     section 552 by administrative agencies, and shall recommend 
     policy changes to Congress and the President to improve the 
     administration of section 552. The Office of Government 
     lnfonnation Services shall offer mediation services to 
     resolve disputes between persons making requests under 
     section 552 and administrative agencies as a non-exclusive 
     alternative to litigation and, at the discretion of the 
     Office, may issue advisory opinions if mediation has not 
     resolved the dispute.
       ``(i) The Government Accountability Office shall conduct 
     audits of administrative agencies on the implementation of 
     section 552 and issue reports detailing the results of such 
       ``(j) Each agency shall--
       ``(1) Designate a Chief FOIA Officer who shall be a senior 
     official of such agency (at the Assistant Secretary or 
     equivalent level).
       General Duties.--The Chief FOIA Officer of each agency 
     shall, subject to the authority of the head of the agency--
       ``(A) have agency-wide responsibility for efficient and 
     appropriate compliance with the FOIA;
       ``(B) monitor FOIA implementation throughout the agency and 
     keep the head of the agency, the chief legal officer of the 
     agency, and the Attorney General appropriately informed of 
     the agency's performance in implementing the FOIA;
       ``(C) recommend to the head of the agency such adjustments 
     to agency practices, policies, personnel, and funding as may 
     be necessary to improve its implementation of the FOIA;
       ``(D) review and report to the Attorney General, through 
     the head of the agency, at such times and in such formats as 
     the Attorney General may direct, on the agency's performance 
     in implementing the FOIA; and
       ``(E) facilitate public understanding of the purposes of 
     the FOIA's statutory exemptions by including concise 
     descriptions of the exemptions in both the agency's FOIA 
     handbook issued under section 552(g) of title 5, United 
     States Code, and the agency's annual FOIA report, and by 
     providing an overview, where appropriate, of certain general 
     categories of agency records to which those exemptions 
       ``(2) Designate one or more FOIA Public Liaisons who shall 
     be appointed by the Chief FOIA Officer.
       General Duties--FOIA Public Liaisons shall report to the 
     agency Chief FOIA Officer and shall serve as supervisory 
     officials to whom a FOIA requester can raise concerns about 
     the service the FOIA requester has received from the FOIA 
     Requester Center, following an initial response from the FOIA 
     Requester Center staff. FOIA Public Liaisons shall be 
     responsible for assisting in reducing delays, increasing 
     transparency and understanding of the status of requests, and 
     assisting in the resolution of disputes.''
       ``(b) Effective Date.--The amendments made by this section 
     shall take effect on the date of enactment of this Act.''.
       (i) Critical infrastructure information.--Strike section 12 
     of the bill.

  The bill (S. 849) was ordered to be engrossed for a third reading, 
was read the third time, and passed.
  (The bill will be printed in a future edition of the Record.)