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Ment Act of 2005 Hearing Committee on the Judiciar S. HRG. 109–69 OPENNESS IN GOVERNMENT AND FREEDOM OF INFORMATION: EXAMINING THE OPEN GOVERN- MENT ACT OF 2005 HEARING BEFORE THE SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION MARCH 15, 2005 Serial No. J–109–7 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 22–471 PDF WASHINGTON : 2005 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma DAVID BROG, Staff Director MICHAEL O’NEILL, Chief Counsel BRUCE A. COHEN, Democratic Chief Counsel and Staff Director SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY JON KYL, Arizona, Chairman ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JOHN CORNYN, Texas JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois STEPHEN HIGGINS, Majority Chief Counsel STEVEN CASH, Democratic Chief Counsel (II) VerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1 prepared statement .......................................................................................... 64 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, pre- pared statement ................................................................................................... 67 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 5 prepared statement .......................................................................................... 90 WITNESSES Cary, Katherine Minter, Chief, Open Records Division, Office of the Texas Attorney General, Austin, Texas ........................................................................ 9 Fuchs, Meredith, General Counsel, National Security Archive, George Wash- ington University, Washington, D.C. .................................................................. 17 Graves, Lisa, Senior Counsel for Legislative Strategy, American Civil Lib- erties Union, Washington, D.C. .......................................................................... 15 Mears, Walter, former Washington Bureau Chief and Executive Editor, Asso- ciated Press, Chapel Hill, North Carolina ......................................................... 11 Susman, Thomas M., Ropes and Gray LLP, Washington, D.C. ........................... 20 Tapscott, Mark, Director, Center for Media and Public Policy, The Heritage Foundation, Washington, D.C. ............................................................................ 13 QUESTIONS AND ANSWERS Responses of Meredith Fuchs to questions submitted by Senator Cornyn ......... 32 Responses of Meredith Fuchs to questions submitted by Senator Leahy ........... 43 Responses of Katherine Minter Cary to questions submitted by Senator Cornyn ................................................................................................................... 50 Response of Walter Mears to a question submitted by Senator Cornyn ............. 52 Responses of Thomas M. Susman to questions submitted by Senator Cornyn .. 53 SUBMISSIONS FOR THE RECORD Cary, Katherine Minter, Chief, Open Records Division, Office of the Texas Attorney General, Austin, Texas, prepared statement ..................................... 57 Fuchs, Meredith, General Counsel, National Security Archive, George Wash- ington University, Washington, D.C., prepared statement .............................. 69 Graves, Lisa, Senior Counsel for Legislative Strategy, American Civil Lib- erties Union, Washington, D.C., prepared statement ....................................... 83 Lechowicz, Lisa, Chief Executive Officer, Health Data Management, Inc., Wayne, Pennsylvania, statement ........................................................................ 93 Mears, Walter, former Washington Bureau Chief and Executive Editor, Asso- ciated Press, Chapel Hill, North Carolina, prepared statement ...................... 97 Morley, Jefferson, journalist, Washington, D.C., letter ........................................ 104 Susman, Thomas M., Ropes and Gray LLP, Washington, D.C., prepared state- ment ...................................................................................................................... 109 Tapscott, Mark, Director, Center for Media and Public Policy, The Heritage Foundation, Washington, D.C., prepared statement ......................................... 116 (III) VerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC VerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC OPENNESS IN GOVERNMENT AND FREEDOM OF INFORMATION: EXAMINING THE OPEN GOVERNMENT ACT OF 2005 TUESDAY, MARCH 15, 2005 UNITED STATES SENATE, SUBCOMMITTEE ON TERRORISM, TECHNOLOGY, AND HOMELAND SECURITY OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The Subcommittee met, pursuant to notice, at 10:05 a.m., in Room SD–226, Dirksen Senate Office Building, Hon. John Cornyn, presiding. Present: Senators Cornyn, Kyl, and Leahy. OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator CORNYN. This hearing of the Senate Subcommittee on Terrorism, Technology, and Homeland Security shall come to order. I want to start out by thanking Chairman Specter for scheduling today’s hearing, and particularly Senators Kyl and Feinstein for giving Senator Leahy and I the opportunity to, I guess, hijack their Subcommittee to talk about the subject of open government. Today’s hearing is entitled, ‘‘Openness in Government and Free- dom of Information: Examining the OPEN Government Act of 2005.’’ It is the third in a series of bipartisan events in recent weeks in which Senator Leahy and I have joined forces. On Feb- ruary 16, shortly before the President’s Day recess in February, Senator Leahy and I went to the Senate floor together to introduce the OPEN Government Act, legislation that promotes account- ability, accessibility, and openness in the Federal Government, principally by strengthening and enhancing the Federal law com- monly known as the Freedom of Information Act, or FOIA. I am pleased to note that the OPEN Government Act is also cosponsored by Senator Isakson of Georgia, and other Senators, I am sure, will be joining in the coming days and weeks, as they become more and more aware of what it is we are doing here. Last Thursday, Senator Leahy and I joined forces again to intro- duce the Faster FOIA Act, the Faster Freedom of Information Act of 2005. I have asked Chairman Specter to place the Faster FOIA Act on the Committee’s markup calendar for this Thursday in the hope of enacting this legislation as soon as possible. It shouldn’t be controversial. It ought to be an easy thing to do, and hopefully will give us more information about the problems with faster implemen- tation of FOIA. (1) VerDate 0ct 09 2002 09:04 Nov 08, 2005 Jkt 022471 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22471.TXT SJUD4 PsN: CMORC 2 There are, unfortunately, many issues in the Senate Judiciary Committee that are divisive. This is not one of them. So it is espe- cially gratifying to be able to work so closely with Senator Leahy on an issue that is so important and fundamental to our nation as openness in government. I want to express my appreciation not only to the Senator, but also his staff for all their hard work on these issues of mutual interest and national interest, and I would like to thank and commend Senator Leahy—recognize, I am a rel- ative newcomer to the United States Senate, but he has been work- ing on these issues for a long time, and I want to commend his dec- ades-long commitment to freedom of information. Today is a particularly fitting day to examine these issues. This past Sunday, an extraordinary coalition of print, radio, television, and online media associations and outlets began the nation’s first ever Sunshine Week. And tomorrow is National Freedom of Infor- mation Day, celebrated every year at a national conference held at the Freedom Forum’s World Center in Arlington, Virginia, on James Madison’s birthday, quite appropriately. Now, I know when we talk about freedom of information and the Freedom of Information Act and how that is implemented in the Federal Government that some people have ambiguous reactions and feelings to the invocation of FOIA. It reminds me of a story
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