VerDate 0ct 09 2002
way in which the legislation proposes. ACUS is the right place for this office of Government Information Services since it has histori- cally been a nonpartisan agency dedicated to improving adminis- trative procedures and assisting agencies do a better job. If Con- gress does not make this modest investment to restore ACUS, and I urge it to do so, then this office should nonetheless still be estab- lished and a location found elsewhere, perhaps in the National Ar- chives. I am confident, Mr. Chairman, that the Office of Govern- ment Information Services will more than pay for itself in diverting cases from the courts, cases that could be settled with an objective arbiter between the requestor and the agency.
The second issue, recovery of attorneys’ fees in litigation. It is imperative that Congress reverse the application of the Supreme Court’s Buckhannon decision to FOIA cases. While this may seem a little self-serving, since I have been known to litigate an occa- sional freedom of information case over the past couple of decades, it is important for the plaintiff to be able to recover fees and costs where the court does not finally adjudicate the issue of disclosure for a special reason in these cases.
It is clear to me, and I believe all of us who have worked with the Freedom of Information Act, that government occasionally withholds requested information to keep it out of the public domain for as long as possible, knowing full well that the law will ulti- mately not support withholding. Or, on occasion, delay may be caused by some other purpose, but the only thing that a requestor can do ultimately to get the information which ought to have been released earlier is to file a lawsuit. These cases don’t move quickly through the courts and they can be expensive to pursue. So when the government sees the end of the road, it only has to hand over the information at that time and the case becomes moot with no consequences to the agency. In the freedom of information context, the Buckhannon decision rewards agency recalcitrance and delay.
I should repeat the same point that Meredith did a few minutes ago. Lawyers working with the media, with advocacy groups, even with businesses, view litigation as a last resort. Our clients would rather have a timely response from the agency. They would rather have an Office of Government Information Services to help resolve disputes. They would rather negotiate than litigate their dif- ferences with the agencies.
But when a lawsuit is filed, the plaintiff is assuming the same role as law enforcer played by the Texas Attorney General. That is, where the lawsuit is responsible for disclosure, a public service has been performed. In those cases, recovery of fees and costs is ap- propriate.
Third issue, enhanced Congressional oversight. That is not cap- tured by a single section in the bill, but by a number of sections, and additionally, by the Faster Freedom of Information Act intro- duced by the two of you last week, Senator Leahy and Senator Cornyn, which I was delighted to hear is on a fast track for consid- eration by the Committee. That bill and a number of provisions of S. 394 reflect a commitment by Congress to improve its ability to oversee and strengthen administration of the Freedom of Informa- tion Act and related laws. I list a number of provisions, starting with the findings and going all the way through the studies at the
09:04 Nov 08, 2005