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FOIA Post Interview:   Chairman Stephen Horn

As of the end of the 107th Congress this year, Representative Stephen Horn, a longtime advocate of the Freedom of Information Act, will retire after serving in Congress for ten years. For the past eight years, Rep. Horn has chaired the subcommittee that holds jurisdiction over FOIA matters in the House of Representatives, currently the Government Efficiency, Financial Management, and Intergovernmental Relations Subcommittee of the Committee on Government Reform.

During these years, Chairman Horn played a key role in the enactment of the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) and conducted his subcommittee's oversight of the governmentwide administration of the FOIA in a steady and scholarly manner befitting his background as a former professor and university president.

Upon this occasion of his retirement from Congress, the Office of Information and Privacy asked Chairman Horn to reflect back upon his years with the FOIA and share his unique perspective with all who are interested in the Act:

Q. How and when did you first become involved with the FOIA?

A. The House Committee on Government Reform has legislative and oversight jurisdiction over the Freedom of Information Act. The full committee assigned FOIA jurisdiction to the subcommittee (and its predecessor subcommittee) that I have chaired since the beginning of the 104th Congress in 1995. 

Q. What struck you most back then about the Act and its implementation?

A. What struck me then and now is the critical role that public access to Government information plays in our democracy. It is key to having an informed citizenry and to supplying our citizens with the knowledge they need to hold their Government accountable. Therefore, I have always been a strong advocate of the Act. Indeed, FOIA is one of many open government laws that should be vigorously implemented. Others include the Presidential Records Act, the Government in the Sunshine Act and Federal Advisory Committee Act.

Q. Did anything surprise you at all about the scope of the FOIA or its implementation?

A. I am continually surprised -- and distressed -- by the amount of time it takes for agencies to respond to FOIA requests. As discussed in answer to your other questions, this results from the volume and complexity of the requests as well as the limited staff available to process them. Another major factor probably is the number of requests from sources other than individual citizens, professors and the news media. I suspect the system is burdened to a significant degree by commercial interests, litigants and others who may have legitimate needs, but who probably were not among the Act's principal intended beneficiaries.

Q. Your subcommittee worked to make major amendments to the FOIA in 1996, through what was a somewhat hurried process but one that took the Act firmly into the electronic age. Were you satisfied with those amendments?

A. I believe that the Electronic Freedom of Information Act Amendments of 1996, known as "E-FOIA," is sound legislation. The law included common-sense measures to facilitate getting Government information to our citizens though use of the Internet as well as expediting agency responses to FOIA requests. However, I am disappointed that the law has not achieved better results thus far.

Q. Your subcommittee held a series of three hearings regarding those E-FOIA amendments, one beforehand in 1996 and two post-enactment in 1998 and 2000. Did they aid the legislative view of E-FOIA and its implementation?

A. The subcommittee's oversight hearings have been very informative. In addition to the hearings, the subcommittee has commissioned several General Accounting Office (GAO) reviews of E-FOIA implementation. The most recent review culminated in an August 2002 GAO report entitled, "Information Management: Update on Implementation of the 1996 Electronic Freedom of Information Act" (GAO-02-493).

Unfortunately, the message from all of these oversight activities is that we have a long way to go before realizing the full potential of E-FOIA. Witnesses at the subcommittee's June 2000 hearing testified that agencies often took a year or more to provide information requested under FOIA. They also testified that agencies had not identified their most commonly requested documents, much less placed them on line. The witnesses attributed these problems to the failure of agencies to assign adequate priority and staff resources to FOIA implementation.

The latest General Accounting Office report, issued this August, indicates that these problems persist. According to GAO, the number of FOIA requests is leveling off at most agencies but backlogs of pending requests are substantial and growing. Agency officials told GAO that the increasing backlogs resulted primarily from the increasing complexity of FOIA requests. GAO also found that while agencies are making progress in posting required material on line, not all materials required by E-FOIA are available on the Internet. Furthermore, materials were sometimes hard to find and Web site links did not always function properly.

These oversight findings suggest to me that much greater effort is needed in order to ensure that E-FOIA achieves its intent. On the positive side, GAO auditors indicated that the Justice Department was working to implement a number of recommendations the GAO had made in an earlier report.

Q. In its FOIA oversight role, was your subcommittee able to coordinate well with your Senate counterparts?

A. On the Senate side, the Judiciary Committee -- rather than the Committee on Governmental Affairs -- has legislative jurisdiction over FOIA. Both the Senate Judiciary Committee and the Committee on Governmental Affairs have oversight jurisdiction with respect to Government information practices. We have had excellent working relationships with both Senate committees on FOIA issues as well as other issues of mutual interest. Of course, my subcommittee works with the Senate Governmental Affairs Committee on a host of common issues. That committee has been extremely helpful to us over the years during the chairmanships of both Senator Fred Thompson and Senator Joe Lieberman.

Q. Recently, your subcommittee made joint requests with the Senate, primarily through Senate Judiciary Committee Chairman Patrick Leahy, for General Accounting Office studies of E-FOIA implementation. Has that process worked out well in your view?

A. Yes. As you point out, the subcommittee and the Senate Judiciary Committee jointly sponsored a recent GAO review of E-FOIA implementation. This is the report I discussed in response to an earlier question. The subcommittee coordinated closely with the Senate Judiciary Committee as the GAO work proceeded, and we issued a joint press release when the GAO report was issued.

Q. This past year, the Department of Justice issued a new Attorney General FOIA Memorandum, replacing the previous one that had been issued in 1993. Do you see that as a large change in government policy toward the implementation of the Act?

A. As you know, the Attorney General Memorandum of October 12, 2001, states that the Justice Department will defend agency decisions to withhold records under FOIA "unless [those decisions] lack a sound legal basis or present unwarranted risk of adverse impact on the ability of other agencies to protect other important records." The October 2001 memorandum superseded guidance issued during the Clinton Administration in 1993 that placed the burden on agencies to justify affirmatively their decisions to withhold records even if the records were covered by FOIA exemptions.

Many are concerned that the new Attorney General Memorandum signals hostility to FOIA and will lead to increased denials of FOIA requests. In fact, the House Government Reform Committee's Citizens Guide to FOIA for this year criticized the Attorney General Memorandum. (See House Report 107-371, dated March 12, 2002, at page 3.) Personally, I am not convinced that the Memorandum deserves such criticism. I believe that the Memorandum may simply represent a legitimate effort to give more deference to agency officials, who, after all, are responsible by law for making FOIA decisions. However, I do think it is important that Congress actively oversee implementation of the Memorandum to ensure that it does not have adverse consequences for FOIA.

Q. Over the years, have you seen more moderated shifts in FOIA policy and any resulting FOIA controversy from one presidential administration to the next?

A. For the most part, I believe that the Administrations of both parties have implemented FOIA in a consistent, professional and non-partisan manner. This is as it should be. As discussed above, the Attorney General guidance on when the Justice Department will defend agency FOIA decisions has changed. It has gone from greater deference to agencies during the Bush I Administration and earlier, to less deference during the Clinton Administration and now back to greater deference. However, I have seen no clear evidence that these changes have had a significant practical impact on day-to-day implementation of the Act.

Q. Do you see the area of government information policy as potentially a bipartisan one, or more as one upon which party differences necessarily have an effect?

A. Government information policy has traditionally been developed on a bipartisan, consensus basis. I certainly hope that this approach continues, and I expect that it generally will. At the same time, some contentious issues have arisen recently -- mainly in the context of homeland security. These issues do not always break down along party lines. Rather, they seem to reflect philosophical differences over how to balance our desire for openness in Government against our concerns over security. The most striking example can be found in the recently enacted law that created the Department of Homeland Security (Public Law 107-296). Subtitle B of title II of that law, called the "Critical Infrastructure Information Act of 2002," grants very broad exemptions from FOIA for information that businesses and others voluntarily provide to the Federal Government (and other governments and organizations) concerning their infrastructure vulnerabilities. One school of thought is that these exemptions are essential in order to encourage the voluntary reporting of such vulnerabilities. However, others believe just as passionately that FOIA already protects such information from disclosure and that the new exemptions will lead to abuses of FOIA.

We are starting to see the same tension between openness and security concerns in the administration of FOIA's traditional exemptions. Information that was disclosed routinely in the past is now being scrutinized in a different light in terms of whether it could help potential terrorists to develop weapons or targets.

Q. What do you foresee for the future of the FOIA in this regard?

A. I expect that the tension between openness and security considerations will intensify in the future. However, I hope that we will work through these issues in a fact-based, objective and nonpartisan way. Doing so would certainly enhance our ability to strike rational balances between these equally legitimate concerns.

Q. Looking at the FOIA's development from an historical perspective, it appears to have commanded its most active legislative attention in roughly 10-year cycles: Legislative consideration of a FOIA began in approximately 1956, enactment came in 1966, the Act was heavily amended in 1974 (arguably sooner than it otherwise might of been due to the August 1974 resignation of President Nixon), then again in 1986, and then again in 1996. Against that backdrop, do you foresee that there will be a need to amend it once again by, perhaps, the year 2006?

A. It is difficult to predict whether further changes to the law will prove necessary. However, I do hope that Congress will conduct active oversight of FOIA in order to assess fully the potential need for amendments to FOIA. I also hope that any potential amendments will be considered through the normal legislative process so that decisions can be made on the basis of a full record.

Unfortunately, there has been a recent tendency in Congress to bypass the normal legislative process and the committees of jurisdiction when enacting actual or de facto amendments to FOIA. This happened in the homeland security legislation. It also happened in the Intelligence Authorization Act for Fiscal Year 2003 (Public Law 107-306). Section 312 of that Act prohibits Federal intelligence agencies from complying with FOIA requests submitted by foreign governments or their agents. Perhaps a case can be made for this provision, but it certainly should have been considered through the regular order rather than as an obscure provision buried in an intelligence authorization bill.

Q. What is your view of the agency employees who now administer the FOIA, year in and year out, throughout the executive branch?

A. Over the years, I have been extremely impressed with the knowledge, dedication and professionalism of the Federal employees who are engaged in implementing FOIA. In particular, my subcommittee staff and I have frequently consulted with the experts in the Justice Department's Office of Information and Privacy. They have been a source of invaluable assistance to us and our Nation.

Q. What message would you like to leave with them, and for the FOIA-requester community as well, based upon your experience?

A. My basic message would be to keep up the good work. I know that they face severe workloads with limited resources. As I have mentioned previously, I expect that the challenges will increase in the future. I also understand that administering FOIA at the Justice Department or at an individual agency can be a thankless job in which one encounters more criticism than praise. However, I firmly believe that openness in government and broad public access to government information are cornerstones of our democracy.

I would also encourage FOIA requesters to persevere in demanding greatest access to information consistent with the public interest. Finally, I urge them to reach out to those in Congress who are responsible for FOIA oversight in order to ensure that those in the Legislative Branch understand the issues from a front-line perspective.   (posted 12/19/02)

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