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08-01-2007 Letter to Kyl, FOIA

August 1, 2007

The Honorable Jon L. Kyl 
United States Senate
Senate Hart Office Building
Room 730
Washington, DC  20510

Re:  Senate Bill 894, the OPEN Government Act of 2007

Dear Senator Kyl,

We write to urge you to allow the bipartisan Openness Promotes Effectiveness in our National Government Act of 2007, S. 849 – the OPEN Government Act –  to proceed to the Senate for a vote this week – before the Senate begins its August recess.

You have acknowledged that the Freedom of Information Act (FOIA), a statute that the OPEN Government Act would substantially strengthen, has been instrumental in exposing government waste, fraud and abuse. Your statements also indicate your agreement that after 40 years, FOIA must be modernized so that requests for information no longer languish for months, years or decades. 

State senators from your home in Arizona have written you to express their strong support of the bill, while numerous Arizonan opinion articles have urged you to stop blocking the long-overdue, commonsense reforms in the bill. (See, e.g., “Restore Power to the People,” The Arizona Republic (June 5, 2007), available at http://www.azcentral.com/arizonarepublic/opinions/articles/0605tue2-05.html.)

Your apparent concern that the provision guiding the award of attorney fees would result in increased litigation is not well-founded. To the contrary, the attorney fees provision would encourage agencies to release records before litigation and to settle cases in litigation in a timely manner. The incentives the provision provides, therefore, would strengthen FOIA and likely reduce costs thus benefiting taxpayers. Moreover, before courts award fees, they weigh four factors, including public and private interest in the records and whether the government had a reasonable basis for withholding the documents. Congress should not hinder courts’ abilities to weigh these factors in the context of particular cases by making the government’s basis for withholding information dispositive of whether fees are awarded when the government hands over documents before a court rules.

Finally, the expanded definition of media in the bill would not result in some unknowable additional costs, as your comments have suggested. Requests from the media represent only about six percent of all FOIA requests and, according to the Congressional Budget Office, fee waivers for media amount to an inconsequential cost for the government. Indeed, the Office of Management and Budget published a model definition back in 1987 that broadens the definition of media to include electronic media as guidance to agencies (see 52 Fed. Reg. 10012). The Central Intelligence Agency adopted that same model definition by regulation on July 18, 2007 (see 72 Fed. Reg. 39315). Given that media coverage is a highly efficient means to communicate information about government activities to the public Congress should welcome the media’s use of this good government law.

Public records should not be inaccessible to people of modest means.  Indeed, the majority of FOIA requesters are individuals and small businesses – taxpayers who deserve accurate and timely information about the actions of their government.  

We urge your support for passage of this bill – without changes that would weaken it – on the Senate floor by unanimous consent.

Respectfully submitted,

Laura MacCleery
Congress Watch 

Linda Andros
Legislative Counsel
Congress Watch