December 14, 2007 CONGRESSIONAL RECORD — SENATE S15701 that is opposed by Democratic and Re- ary Chairman than during the 2-year The PRESIDING OFFICER. The publican home state Senators is one tenures of either of the two Republican clerk will report the bill by title. that cannot move. chairmen working with Republican The legislative clerk read as follows: When the President sends on well- Senate majorities. A bill (S. 2488) to promote accessibility, ac- qualified consensus nominations, we The Administrative Office of the U.S. countability, and openness in Government can work together and continue to Courts will list 44 judicial vacancies by strengthening section 552 of title 5, make progress as we are today. and 14 circuit court vacancies after to- United States Code (commonly referred to as I congratulate Joseph and his family day’s confirmations. Compare that to the Freedom of Information Act), and for on his confirmation today. the numbers at the end of the 109th other purposes. Congress, when the total vacancies f There being no objection, the Senate under a Republican controlled Judici- proceeded to consider the bill. NOMINATION OF THOMAS D. ary Committee were 51 judicial vacan- Mr. REID. Madam President, I ask SCHROEDER cies and 15 circuit court vacancies. unanimous consent that the bill be Mr. LEAHY. Madam President, the That means, that despite the addi- read three times, passed, the motion to Senate continues, as we have all year, tional vacancies that arose at the be- reconsider be laid upon the table, with to make progress filling judicial vacan- ginning of the 110th Congress and no intervening action or debate, and cies by considering yet another nomi- throughout this year, the current va- that any statements relating to this nation reported out of Committee this cancy totals under my chairmanship of bill be printed in the RECORD. month. The nomination before us the Judiciary Committee are below The PRESIDING OFFICER. Without today for a lifetime appointment to the where they were under a Republican objection, it is so ordered. led-Judiciary Committee. They are al- Federal bench is Thomas D. Schroeder, The bill (S. 2488) was ordered to be most half of what they were at the end to the Middle District of North Caro- engrossed for a third reading, was read of President Clinton’s term, when Re- lina. He has the support of both home the third time, and passed, as follows: State Senators. I acknowledge the sup- publican pocket filibusters allowed ju- S. 2488 port of Senators DOLE and BURR, and dicial vacancies to rise above 100 before want to thank Senator WHITEHOUSE for settling at 80. Twenty-six of them were Be it enacted by the Senate and House of Rep- chairing the hearing on this nomina- for circuit courts. resentatives of the United States of America in Congress assembled, tion. When the President consults and Last month, the Judiciary Com- sends the Senate well-qualified, con- SECTION 1. SHORT TITLE. mittee reached a milestone by voting sensus nominations, we can work to- This Act may be cited as the ‘‘Openness to report our 40th judicial nominee this gether and continue to make progress Promotes Effectiveness in our National Gov- as we are today. ernment Act of 2007’’ or the ‘‘OPEN Govern- year. That exceeds the totals reported ment Act of 2007’’. in each of the previous 2 years, when a I congratulate the nominee and his Republican-led Judiciary Committee family on his confirmation today. SEC. 2. FINDINGS. Congress finds that— was considering this President’s nomi- f (1) the Freedom of Information Act was nees. LEGISLATIVE SESSION signed into law on July 4, 1966, because the Thomas D. Schroeder is a Partner at American people believe that— the Winston-Salem, NC, office of the The PRESIDING OFFICER. The Sen- (A) our constitutional democracy, our sys- law firm of Womble, Carlyle, Sandridge ate will now return to legislative ses- tem of self-government, and our commit- & Price, PLLC, where he has worked sion. ment to popular sovereignty depends upon the consent of the governed; almost his entire legal career. Mr. f Schroeder served as a law clerk for (B) such consent is not meaningful unless UNANIMOUS CONSENT AGREE- it is informed consent; and Judge George E. MacKinnon on the (C) as Justice Black noted in his concur- U.S. Court of Appeals for the DC Cir- MENT—EXECUTIVE CALENDAR NO. 373 ring opinion in Barr v. Matteo (360 U.S. 564 cuit. He graduated from Kansas Uni- (1959)), ‘‘The effective functioning of a free versity and Notre Dame Law School, Mr. REID. Madam President, as in government like ours depends largely on the where he was Editor-in-Chief of the executive session, I ask unanimous force of an informed public opinion. This Notre Dame Law Review. consent that when the Senate con- calls for the widest possible understanding of siders Executive Calendar No. 373, the the quality of government service rendered When we confirm the nomination we by all elective or appointed public officials consider today, the Senate will have nomination of John Tinder to be U.S. or employees.’’; confirmed 39 nominations for lifetime circuit judge, there be a time limit of (2) the American people firmly believe that appointments to the Federal bench this 30 minutes for debate, equally divided, our system of government must itself be gov- session alone. That exceeds the totals between the chairman and ranking erned by a presumption of openness; confirmed in all of 2004, 2005, and 2006 member of the Judiciary Committee, (3) the Freedom of Information Act estab- when a Republican-led Senate was con- Senators LEAHY and SPECTER; that at lishes a ‘‘strong presumption in favor of dis- the conclusion or yielding back of closure’’ as noted by the United States Su- sidering this President’s nominees; all preme Court in United States Department of of 1989; all of 1993, when a Democratic- time, the Senate vote on the confirma- State v. Ray (502 U.S. 164 (1991)), a presump- led Senate was considering President tion of the nomination, the motion to tion that applies to all agencies governed by Clinton’s nominees; all of 1997 and 1999, reconsider be laid on the table, the that Act; when a Republican-led Senate was con- President be immediately notified of (4) ‘‘disclosure, not secrecy, is the domi- sidering President Clinton’s nominees; the Senate’s action, and the Senate nant objective of the Act,’’ as noted by the and all of 1996, when the Republican-led then return to legislative session. United States Supreme Court in Department of Air Force v. Rose (425 U.S. 352 (1976)); Senate did not confirm a single one of The PRESIDING OFFICER. Without (5) in practice, the Freedom of Information President Clinton’s circuit nominees. objection, it is so ordered. Act has not always lived up to the ideals of When this nomination is confirmed, f that Act; and the Senate will have confirmed 139 (6) Congress should regularly review sec- total Federal judicial nominees in my OPENNESS PROMOTES EFFECTIVE- tion 552 of title 5, United States Code (com- tenure as Judiciary Chairman. During NESS IN OUR NATIONAL GOV- monly referred to as the Freedom of Infor- ERNMENT ACT OF 2007 mation Act), in order to determine whether the Bush Presidency, more circuit further changes and improvements are nec- judges, more district judges—more Mr. REID. Madam President, I ask essary to ensure that the Government re- total judges—were confirmed in the unanimous consent that the Senate mains open and accessible to the American first 24 months that I served as Judici- proceed to the consideration S. 2488. people and is always based not upon the

VerDate Aug 31 2005 07:19 Dec 15, 2007 Jkt 069060 PO 00000 Frm 00123 Fmt 0637 Sfmt 0634 E:\CR\FM\G14DE6.104 S14DEPT1 bajohnson on PROD1PC69 with SENATE S15702 CONGRESSIONAL RECORD — SENATE December 14, 2007

‘‘need to know’’ but upon the fundamental (1) IN GENERAL.—Section 552(a)(6)(A) of (1) in subparagraph (B)(ii), by inserting ‘‘right to know’’. title 5, United States Code, is amended by in- after the first comma ‘‘the number of occa- SEC. 3. PROTECTION OF FEE STATUS FOR NEWS serting after clause (ii) the following: sions on which each statute was relied MEDIA. ‘‘The 20-day period under clause (i) shall upon,’’; Section 552(a)(4)(A)(ii) of title 5, United commence on the date on which the request (2) in subparagraph (C), by inserting ‘‘and States Code, is amended by adding at the end is first received by the appropriate compo- average’’ after ‘‘median’’; the following: nent of the agency, but in any event not (3) in subparagraph (E), by inserting before ‘‘In this clause, the term ‘a representative later than ten days after the request is first the semicolon ‘‘, based on the date on which of the news media’ means any person or enti- received by any component of the agency the requests were received by the agency’’; ty that gathers information of potential in- that is designated in the agency’s regula- (4) by redesignating subparagraphs (F) and terest to a segment of the public, uses its tions under this section to receive requests (G) as subparagraphs (N) and (O), respec- editorial skills to turn the raw materials under this section. The 20-day period shall tively; and into a distinct work, and distributes that not be tolled by the agency except— (5) by inserting after subparagraph (E) the work to an audience. In this clause, the term ‘‘(I) that the agency may make one request following: ‘news’ means information that is about cur- to the requester for information and toll the ‘‘(F) the average number of days for the rent events or that would be of current inter- 20-day period while it is awaiting such infor- agency to respond to a request beginning on est to the public. Examples of news-media mation that it has reasonably requested the date on which the request was received entities are television or radio stations from the requester under this section; or by the agency, the median number of days broadcasting to the public at large and pub- ‘‘(II) if necessary to clarify with the re- for the agency to respond to such requests, lishers of periodicals (but only if such enti- quester issues regarding fee assessment. In and the range in number of days for the ties qualify as disseminators of ‘news’) who either case, the agency’s receipt of the re- agency to respond to such requests; make their products available for purchase quester’s response to the agency’s request ‘‘(G) based on the number of business days by or subscription by or free distribution to for information or clarification ends the toll- that have elapsed since each request was the general public. These examples are not ing period.’’. originally received by the agency— all-inclusive. Moreover, as methods of news (2) EFFECTIVE DATE.—The amendment ‘‘(i) the number of requests for records to delivery evolve (for example, the adoption of made by this subsection shall take effect 1 which the agency has responded with a de- the electronic dissemination of newspapers year after the date of enactment of this Act. termination within a period up to and in- through telecommunications services), such (b) COMPLIANCE WITH TIME LIMITS.— cluding 20 days, and in 20-day increments up alternative media shall be considered to be (1) IN GENERAL.— to and including 200 days; news-media entities. A freelance journalist (A) SEARCH FEES.—Section 552(a)(4)(A) of ‘‘(ii) the number of requests for records to shall be regarded as working for a news- title 5, United States Code, is amended by which the agency has responded with a de- media entity if the journalist can dem- adding at the end the following: termination within a period greater than 200 onstrate a solid basis for expecting publica- ‘‘(viii) An agency shall not assess search days and less than 301 days; tion through that entity, whether or not the fees (or in the case of a requester described ‘‘(iii) the number of requests for records to journalist is actually employed by the enti- under clause (ii)(II), duplication fees) under which the agency has responded with a de- ty. A publication contract would present a this subparagraph if the agency fails to com- termination within a period greater than 300 solid basis for such an expectation; the Gov- ply with any time limit under paragraph (6), days and less than 401 days; and ernment may also consider the past publica- if no unusual or exceptional circumstances ‘‘(iv) the number of requests for records to tion record of the requester in making such (as those terms are defined for purposes of which the agency has responded with a de- a determination.’’. paragraphs (6)(B) and (C), respectively) apply termination within a period greater than 400 to the processing of the request.’’. SEC. 4. RECOVERY OF ATTORNEY FEES AND LITI- days; GATION COSTS. (B) PUBLIC LIAISON.—Section 552(a)(6)(B)(ii) ‘‘(H) the average number of days for the (a) IN GENERAL.—Section 552(a)(4)(E) of of title 5, United States Code, is amended by agency to provide the granted information title 5, United States Code, is amended— inserting after the first sentence the fol- beginning on the date on which the request (1) by inserting ‘‘(i)’’ after ‘‘(E)’’; and lowing: ‘‘To aid the requester, each agency was originally filed, the median number of (2) by adding at the end the following: shall make available its FOIA Public Liai- days for the agency to provide the granted ‘‘(ii) For purposes of this subparagraph, a son, who shall assist in the resolution of any information, and the range in number of complainant has substantially prevailed if disputes between the requester and the agen- days for the agency to provide the granted the complainant has obtained relief through cy.’’. information; either— (2) EFFECTIVE DATE AND APPLICATION.—The ‘‘(I) the median and average number of ‘‘(I) a judicial order, or an enforceable amendment made by this subsection shall days for the agency to respond to adminis- written agreement or consent decree; or take effect 1 year after the date of enact- trative appeals based on the date on which ‘‘(II) a voluntary or unilateral change in ment of this Act and apply to requests for in- the appeals originally were received by the position by the agency, if the complainant’s formation under section 552 of title 5, United agency, the highest number of business days claim is not insubstantial.’’. States Code, filed on or after that effective taken by the agency to respond to an admin- (b) LIMITATION.—Notwithstanding section date. istrative appeal, and the lowest number of 1304 of title 31, United States Code, no SEC. 7. INDIVIDUALIZED TRACKING NUMBERS business days taken by the agency to re- amounts may be obligated or expended from FOR REQUESTS AND STATUS INFOR- spond to an administrative appeal; MATION. the Claims and Judgment Fund of the United ‘‘(J) data on the 10 active requests with the (a) IN GENERAL.—Section 552(a) of title 5, earliest filing dates pending at each agency, States Treasury to pay the costs resulting United States Code, is amended by adding at from fees assessed under section 552(a)(4)(E) including the amount of time that has the end the following: elapsed since each request was originally re- of title 5, United States Code. Any such ‘‘(7) Each agency shall— ceived by the agency; amounts shall be paid only from funds annu- ‘‘(A) establish a system to assign an indi- ‘‘(K) data on the 10 active administrative ally appropriated for any authorized purpose vidualized tracking number for each request appeals with the earliest filing dates pending for the Federal agency against which a claim received that will take longer than ten days before the agency as of September 30 of the or judgment has been rendered. to process and provide to each person mak- preceding year, including the number of SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY ing a request the tracking number assigned business days that have elapsed since the re- AND CAPRICIOUS REJECTIONS OF to the request; and quests were originally received by the agen- REQUESTS. ‘‘(B) establish a telephone line or Internet cy; Section 552(a)(4)(F) of title 5, United States service that provides information about the ‘‘(L) the number of expedited review re- Code, is amended— status of a request to the person making the quests that are granted and denied, the aver- (1) by inserting ‘‘(i)’’ after ‘‘(F)’’; and request using the assigned tracking number, age and median number of days for adjudi- (2) by adding at the end the following: including— cating expedited review requests, and the ‘‘(ii) The Attorney General shall— ‘‘(i) the date on which the agency origi- number adjudicated within the required 10 ‘‘(I) notify the Special Counsel of each civil nally received the request; and days; action described under the first sentence of ‘‘(ii) an estimated date on which the agen- ‘‘(M) the number of fee waiver requests clause (i); and cy will complete action on the request.’’. that are granted and denied, and the average ‘‘(II) annually submit a report to Congress (b) EFFECTIVE DATE AND APPLICATION.—The on the number of such civil actions in the amendment made by this section shall take and median number of days for adjudicating preceding year. effect 1 year after the date of enactment of fee waiver determinations;’’. ‘‘(iii) The Special Counsel shall annually this Act and apply to requests for informa- (b) APPLICABILITY TO AGENCY AND EACH submit a report to Congress on the actions tion under section 552 of title 5, United PRINCIPAL COMPONENT OF THE AGENCY.—Sec- taken by the Special Counsel under clause States Code, filed on or after that effective tion 552(e) of title 5, United States Code, is (i).’’. date. amended— SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON SEC. 8. REPORTING REQUIREMENTS. (1) by redesignating paragraphs (2) through REQUESTS. (a) IN GENERAL.—Section 552(e)(1) of title 5, (5) as paragraphs (3) through (6), respec- (a) TIME LIMITS.— United States Code, is amended— tively; and

VerDate Aug 31 2005 05:34 Dec 15, 2007 Jkt 069060 PO 00000 Frm 00124 Fmt 0637 Sfmt 0634 E:\CR\FM\A14DE6.058 S14DEPT1 bajohnson on PROD1PC69 with SENATE December 14, 2007 CONGRESSIONAL RECORD — SENATE S15703 (2) by inserting after paragraph (1) the fol- ‘‘(5) facilitate public understanding of the Openness Promotes Effectiveness in lowing: purposes of the statutory exemptions of this our National Government Act, the ‘‘(2) Information in each report submitted section by including concise descriptions of ‘‘OPEN Government Act—the first under paragraph (1) shall be expressed in the exemptions in both the agency’s hand- major reform to the Freedom of Infor- terms of each principal component of the book issued under subsection (g), and the agency and for the agency overall.’’. agency’s annual report on this section, and mation Act, ‘‘FOIA’’, in more than a (c) PUBLIC AVAILABILITY OF DATA.—Section by providing an overview, where appropriate, decade. I commend the bill’s chief Re- 552(e)(3) of title 5, United States Code, (as re- of certain general categories of agency publican cosponsor, Senator JOHN designated by subsection (b) of this section) records to which those exemptions apply; CORNYN, for his commitment and dedi- is amended by adding at the end ‘‘In addi- and cation to passing FOIA reform legisla- tion, each agency shall make the raw statis- ‘‘(6) designate one or more FOIA Public Li- tion this year. I am also appreciative of tical data used in its reports available elec- aisons. the efforts of Senator JON KYL for co- tronically to the public upon request.’’. ‘‘(l) FOIA Public Liaisons shall report to sponsoring this bill and helping us to SEC. 9. OPENNESS OF AGENCY RECORDS MAIN- the agency Chief FOIA Officer and shall TAINED BY A PRIVATE ENTITY. serve as supervisory officials to whom a re- reach a compromise on this legislation, Section 552(f) of title 5, United States quester under this section can raise concerns so that the Senate could consider and Code, is amended by striking paragraph (2) about the service the requester has received pass meaningful FOIA reform legisla- and inserting the following: from the FOIA Requester Center, following tion this year. ‘‘(2) ‘record’ and any other term used in an initial response from the FOIA Requester Earlier this year, the Senate passed this section in reference to information in- Center Staff. FOIA Public Liaisons shall be this historic FOIA reform legislation, cludes— responsible for assisting in reducing delays, S. 849, before adjourning for the August ‘‘(A) any information that would be an increasing transparency and understanding recess. Now that the Senate has unani- agency record subject to the requirements of of the status of requests, and assisting in the this section when maintained by an agency resolution of disputes.’’. mously passed a modified bill, to en- in any format, including an electronic for- (b) EFFECTIVE DATE.—The amendments sure that ‘‘pay/go’’ and other concerns mat; and made by this section shall take effect on the of the House are adequately addressed, ‘‘(B) any information described under sub- date of enactment of this Act. I hope that the House will promptly paragraph (A) that is maintained for an SEC. 11. REPORT ON PERSONNEL POLICIES RE- enact this bill and send it to the Presi- agency by an entity under Government con- LATED TO FOIA. dent without further delay. tract, for the purposes of records manage- Not later than 1 year after the date of en- I have worked very hard to address ment.’’. actment of this Act, the Office of Personnel the concerns of the House Oversight Management shall submit to Congress a re- SEC. 10. OFFICE OF GOVERNMENT INFORMATION and Government Reform Committee, to SERVICES. port that examines— (a) IN GENERAL.—Section 552 of title 5, (1) whether changes to executive branch ensure that the Congress can enact United States Code, is amended by adding at personnel policies could be made that meaningful FOIA reform legislation the end the following: would— this year. I commend Congressman ‘‘(h)(1) There is established the Office of (A) provide greater encouragement to all WAXMAN, the distinguished Chairman Government Information Services within the Federal employees to fulfill their duties of that Committee, for his commit- National Archives and Records Administra- under section 552 of title 5, United States ment to FOIA reform and I thank him tion. Code; and and his staff for all of their hard work ‘‘(2) The Office of Government Information (B) enhance the stature of officials admin- Services shall— istering that section within the executive on this legislation. ‘‘(A) review policies and procedures of ad- branch; The bill that the Senate passed today ministrative agencies under this section; (2) whether performance of compliance includes ‘‘pay/go’’ language that has ‘‘(B) review compliance with this section with section 552 of title 5, United States been requested by the House and it also by administrative agencies; and Code, should be included as a factor in per- eliminates a provision on citations to ‘‘(C) recommend policy changes to Con- sonnel performance evaluations for any or FOIA exemptions in legislation that gress and the President to improve the ad- all categories of Federal employees and offi- was in the previous bill. To accommo- ministration of this section. cers; date other concerns of the House, the ‘‘(3) The Office of Government Information (3) whether an employment classification Services shall offer mediation services to re- series specific to compliance with sections bill also includes a new provision that solve disputes between persons making re- 552 and 552a of title 5, United States Code, requires Federal agencies to disclose quests under this section and administrative should be established; the FOIA exemptions that they rely agencies as a non-exclusive alternative to (4) whether the highest level officials in upon when redacting information from litigation and, at the discretion of the Office, particular agencies administering such sec- documents released under FOIA. In ad- may issue advisory opinions if mediation has tions should be paid at a rate of pay equal to dition, the bill adds FOIA duplication not resolved the dispute. or greater than a particular minimum rate; ‘‘(i) The Government Accountability Office fees for noncommercial requesters, in- and cluding the media, to the fee waiver shall conduct audits of administrative agen- (5) whether other changes to personnel cies on the implementation of this section policies can be made to ensure that there is penalty that will be imposed when an and issue reports detailing the results of a clear career advancement track for indi- agency fails to meet the 20-day statu- such audits. viduals interested in devoting themselves to tory clock under FOIA. While I will ‘‘(j) Each agency shall designate a Chief a career in compliance with such sections; continue to work with the House and FOIA Officer who shall be a senior official of and others to further strengthen this crit- such agency (at the Assistant Secretary or (6) whether the executive branch should re- ical open government law, I hope that equivalent level). quire any or all categories of Federal em- ‘‘(k) The Chief FOIA Officer of each agency the House will promptly take up the bi- ployees to undertake awareness training of partisan FOIA compromise bill that we shall, subject to the authority of the head of such sections. the agency— have been able to pass so that it may SEC. 12. REQUIREMENT TO DESCRIBE EXEMP- ‘‘(1) have agency-wide responsibility for ef- TIONS AUTHORIZING DELETIONS OF be signed into law before the end of the ficient and appropriate compliance with this MATERIAL PROVIDED UNDER FOIA. year. section; Section 552(b) of title 5, United States As the first major reform to FOIA in ‘‘(2) monitor implementation of this sec- Code, is amended in the matter after para- more than a decade, the OPEN Govern- tion throughout the agency and keep the graph (9)— ment Act will help to reverse the trou- head of the agency, the chief legal officer of (1) in the second sentence, by inserting the agency, and the Attorney General appro- bling trends of excessive delays and lax after ‘‘amount of information deleted’’ the FOIA compliance in our government priately informed of the agency’s perform- following: ‘‘, and the exemption under which ance in implementing this section; the deletion is made,’’; and and help to restore the public’s trust in ‘‘(3) recommend to the head of the agency (2) in the third sentence, by inserting after their government. This bill will also such adjustments to agency practices, poli- ‘‘amount of the information deleted’’ the fol- improve transparency in the Federal cies, personnel, and funding as may be nec- lowing: ‘‘, and the exemption under which Government’s FOIA process by restor- essary to improve its implementation of this the deletion is made,’’. ing meaningful deadlines for agency section; Mr. LEAHY. Madam President, I am action under FOIA; imposing real con- ‘‘(4) review and report to the Attorney General, through the head of the agency, at pleased that, once again, the Senate sequences on federal agencies for miss- such times and in such formats as the Attor- has reaffirmed its bipartisan commit- ing FOIA’s 20-day statutory deadline; ney General may direct, on the agency’s per- ment to open and transparent govern- clarifying that FOIA applies to Govern- formance in implementing this section; ment by unanimously passing the ment records held by outside private

VerDate Aug 31 2005 05:34 Dec 15, 2007 Jkt 069060 PO 00000 Frm 00125 Fmt 0637 Sfmt 0634 E:\CR\FM\A14DE6.058 S14DEPT1 bajohnson on PROD1PC69 with SENATE S15704 CONGRESSIONAL RECORD — SENATE December 14, 2007 contractors; establishing a FOIA hot- quester to recover attorneys’ fees if the RELATIVE TO THE HANGING OF line service for all Federal agencies; requester’s claim is wholly insubstan- NOOSES FOR THE PURPOSE OF and creating a FOIA Ombudsman to tial. To address House ‘‘pay/go’’ con- INTIMIDATION provide FOIA requestors and, federal cerns, the bill also requires that any Mr. REID. Madam President, I ask agencies with a meaningful alternative attorneys’’ fees assessed under this unanimous consent that the Senate to costly litigation. provision be paid from any annually proceed to Calendar No. 543, S. Res. 396. Specifically, the OPEN Government appropriated agency funds. The PRESIDING OFFICER. The Act will protect the public’s right to To address concerns about the grow- clerk will report the resolution by know, by ensuring that anyone who ing costs of FOIA litigation, the bill title. gathers information to inform the pub- also creates an Office of Government The legislative clerk read as follows: lic, including freelance journalists and Information Services in the National A resolution (S. Res. 396) expressing the bloggers, may seek a fee waiver when Archives and creates an ombudsman to sense of the Senate that the hanging of they request information under FOIA. mediate agency-level FOIA disputes. In nooses for the purpose of intimidation should The bill ensures that Federal agencies addition the bill ensures that each fed- be thoroughly investigated by Federal, will not automatically exclude Inter- eral agency will appoint a Chief FOIA State, and local law enforcement authorities net blogs and other Web-based forms of Officer, who will monitor the agency’s and that any criminal violations should be vigorously prosecuted. media when deciding whether to waive compliance with FOIA requests, and a FOIA fees. In addition, the bill also FOIA Public Liaison who will be avail- There being no objection, the Senate proceeded to consider the resolution clarifies that the definition of news able to resolve FOIA related disputes. which had been reported from the Com- media, for purposes of FOIA fee waiv- Finally, the bill does several things mittee on the Judiciary with an ers, includes free newspapers and indi- to enhance the agency reporting and amendment and an amendment to the viduals performing a media function tracking requirements under FOIA. The bill creates a tracking system for preamble and an amendment to the who do not necessarily have a prior title, as follows: history of publication. FOIA requests to assist members of the public and the media. The bill also es- [Strike out all after the resolving The bill also restores meaningful clause and insert the part printed in deadlines for agency action, by ensur- tablishes a FOIA hotline service for all Federal agencies, either by telephone italic.] ing that the 20-day statutory clock [Strike the preamble and insert the or on the Internet, to enable requestors under FOIA starts when a request is re- part printed in italic.] to track the status of their FOIA re- ceived by the appropriate component of S. RES. 396 the agency and requiring that agency quests. The bill also clarifies that øWhereas, in the fall of 2007, nooses have FOIA offices get FOIA requests to the FOIA applies to agency records that are held by outside private contractors, been found hanging in or near a high school appropriate agency component within in North Carolina, a Home Depot store in 10 days of the receipt of such requests. no matter where these records are lo- New Jersey, a school playground in Lou- To ensure accuracy in FOIA responses, cated. isiana, the campus of the University of the bill allows federal agencies to toll The Freedom of Information Act is Maryland, a factory in Houston, Texas, and an essential tool to ensure that all the 20-day clock while they are await- on the door of a professor’s office at Colum- Americans can access information ing a response to a reasonable request bia University; about the workings of their govern- øWhereas the Southern Poverty Law Cen- for information from a FOIA requester ment. But, after four decades, this open ter has recorded between 40 and 50 suspected on one occasion, or while the agency is government law needs to be strength- hate crimes involving nooses since Sep- awaiting clarification regarding a ened. I am pleased that the reforms tember 2007; FOIA fee assessment. In addition, to øWhereas, since 2001, the Equal Employ- contained in the OPEN Government encourage agencies to meet the 20-day ment Opportunity Commission has filed Act will ensure that FOIA is reinvigo- time limit the bill requires that an more than 30 lawsuits that involve the dis- rated—so that it works more effec- agency refund FOIA search fees—and playing of nooses in places of employment; tively for the American people. øWhereas nooses are reviled by many duplication fees for noncommercial re- Again, I commend Senators CORNYN Americans as symbols of racism and of questors—if it fails to meet the 20-day and KYL and the many other cospon- lynchings that were once all too common; deadline, except in the case of excep- sors of this legislation for their dedica- øWhereas, according to Tuskegee Institute, tional circumstances as defined by the tion to open government. But, most more than 4,700 people were lynched between FOIA statute. importantly, I especially want to 1882 and 1959 in a campaign of terror led by The bill also addresses a relatively the Ku Klux Klan; thank the many concerned citizens øWhereas the number of victims killed by new concern that, under current law, who, knowing the importance of this Federal agencies have an incentive to lynching in the history of the United States measure to the American people’s right exceeds the number of people killed in the delay compliance with FOIA requests to know, have demanded action on this horrible attack on Pearl Harbor (2,333 dead) until just before a court decision is bill. This bill is endorsed by more than and Hurricane Katrina (1,836 dead) combined; made that is favorable to a FOIA re- 115 business, public interest, and news and ø questor. The Supreme Court’s decision organizations from across the political Whereas African-Americans, as well as in Buckhannon Board and Care Home, Italian, Jewish, and Mexican-Americans, and ideological spectrum, including the have comprised the vast majority of lynch- Inc. v. West Virginia Dep’t of Health American Library Association, the and Human Resources, 532 U.S. 598, ing victims, and only when we erase the ter- U.S. Chamber of Commerce, rible symbols of the past can we finally begin 2001, eliminated the ‘‘catalyst theory’’ OpenTheGovemment.org, Public Cit- to move forward on issues of race in the for attorneys’ fees recovery under cer- izen, the Republican Liberty Caucus, United States: Now, therefore, be it¿ tain federal civil rights laws. When ap- the Sunshine in Government Initiative Whereas, in the fall of 2007, nooses have been plied to FOIA cases, Buckhannon pre- and the Vermont Press Association. found hanging in or near a high school in North cludes FOIA requesters from ever being The invaluable support of these and Carolina, a Home Depot store in New Jersey, a school playground in Louisiana, the campus of eligible to recover attorneys fees under many other organizations is what led circumstances where an agency pro- the University of Maryland, a factory in Hous- the opponents of this bill to come ton, Texas, and on the door of a professor’s of- vides the records requested in the liti- around and support this legislation. fice at Columbia University; gation just prior to a court decision By passing this important FOIA re- Whereas the Southern Poverty Law Center that would have been favorable to the form legislation, the Senate has re- has recorded between 40 and 50 suspected hate FOIA requestor. The bill clarifies that affirmed the principle that open gov- crimes involving nooses since September 2007; Buckhannon does not apply to FOIA ernment is not a Democratic issue or a Whereas, since 2001, the Equal Employment cases. Under the bill, a FOIA requester Republican issue. But, rather, it is an Opportunity Commission has filed more than 30 can obtain attorneys’ fees when he or American issue and an American value. lawsuits that involve the displaying of nooses in she files a lawsuit to obtain records places of employment; I strongly encourage the House of Rep- Whereas nooses are reviled by many Ameri- from the Government and the Govern- resentatives, which overwhelmingly cans as symbols of racism and of lynchings that ment releases those records before the passed a similar measure earlier this were once all too common; court orders them to do so. But, this year, to promptly take up and enact Whereas, according to Tuskegee Institute, provision would not allow the re- this bill before adjourning for the year. more than 4,700 people were lynched between

VerDate Aug 31 2005 05:34 Dec 15, 2007 Jkt 069060 PO 00000 Frm 00126 Fmt 0637 Sfmt 0634 E:\CR\FM\A14DE6.064 S14DEPT1 bajohnson on PROD1PC69 with SENATE