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gitimate dispute about what the law required, what was open and what was not open, somewhere you could go and ask.
I wonder, Mr. Susman, can you share with us some of your thoughts? You talked a little bit about attorneys’ fees, the impor- tance of this ombudsman. We heard something about resources people can go to to find out what their responsibilities are, how could we improve those incentives to comply in a way that would reduce the need for people ultimately to go to court?
Mr. SUSMAN. Thank you, Mr. Chairman. Let me start by saying that I do not tend to view the professionals who administer Free- dom of Information Act requests from day to day, the access profes- sionals in the bureaucracies, as the problem because, for the most part, they follow the policy directions from above. They work with the resources that they have. They work with the systems that they have. They work with the technology that they have.
So I think that the issues, the process issues, administration issues, are not the fault of those who receive the requests, open them, and have to find the documents and respond, but they arise higher up in the agency. And most agencies, and certainly the exec- utive branch generally, do not have the structure for dealing with disputes in a regular and rapid way.
So, for example, if there is a delay that an agency experiences or if there is a dispute over fees, a lot of the times the reason you have to go directly to court is because you can’t otherwise get a person high enough up in the agency to focus on the subject quickly enough. Sometimes, you go to court in order to get the Justice De- partment involved because the agency doesn’t want to disclose something that will be embarrassing, and it is only when the U.S. Attorney’s Office or a Justice Department lawyer calls a meeting with his or her client before the status conference in court that the discussion is had that Senator Leahy refers to in terms of the At- torney General’s memorandum. It may say we will defend you, but these lawyers on the line don’t want to go before the District Court judges and defend cases that are indefensible.
So that supports having, for example, a tracking system that your legislation calls for in the first instance. I was talking to some of my colleagues about the number of times I have used the Free- dom of Information Act request and had to follow up with a faxed copy of the request or call and send another one or even two over again because the agencies haven’t had the systems in place to track them and to let you know readily where the request is. This is technology most foreign countries, which have been adopting open government statutes over the last decade, already have. It is time for us, too.
Once you begin to deal with the agency, if there is a dispute, a lot of times, these disputes are caused by simply mistrust. The agencies have had their fill of requestors trying to get this kind of information and the requestor has had their fill of getting what is viewed as stonewalling by the agency, and yet there is no place else to go. There is just no place to go.
You can go to the Justice Department for advice, but they defend the agencies, so that is not at all like the Texas Attorney General’s Office. That is not exactly where I would put my hotline in the Federal Government. We need an independent office that can act
09:04 Nov 08, 2005