Gonzales Slips the Questions on Open Government
SEN. PATRICK LEAHY: Now, you've been at the center of many administration battles to keep government information secret, from the executive order that I believe got at the Presidential Records Act to the initial attempt to refuse to allow Dr. Rice to testify before the 9/11 Commission to the question of keeping secret the vice president's energy task force.
Now, I've always found that every administration, Republican or Democrat, would love to keep a whole lot of things from the public. They do something they're proud of, they'll send out 100 press releases. Otherwise, they'll hold it back. We have the FOIA, Freedom of Information Act, which is a very good thing. It keeps both Democratic and Republican administrations in line.
Historically, the government has established two broad categories of restricted government information classified information governed by executive orders and non-classified information controlled by exemptions in the Freedom of Information Act. Recently, there's been several new quasi-secret designations -- sensitive but unclassified or sensitive security -- that seem to be done by hawk agency directive. If you're confirmed as the attorney general, will you take steps to create a uniform standard to ensure material be kept from public disclosure only to the extent only necessary to prevent harm?
GONZALES: Senator, I would commit that that would be something that I would strongly look at.
SEN. JOHN CORNYN: And, finally, as you know, because we worked together in Texas when I was attorney general, I have a deep and abiding faith in the cause of open government, and, as attorney general, I was responsible for ruling on open records requests and writing legal opinions on open meetings laws.
Well, Senator Leahy and I have joined cause and, I hope, will be able to come up with some improvements to the Freedom of Information Act, and I hope we can count on you to work with us in that cause. Here again, as we've observed, Washington operates a little differently from what at least my experience had been in Austin and elsewhere.
But the fundamental proposition about the legitimacy of government flowing from the consent of the governed seems to be a principle that I hope would apply here as well as it applied in Austin, I'm being somewhat facetious there, but I'm confident did so after soliciting your input. I'm particularly interested in the administrative conference because of its previous role in improving agency performance under the Freedom of Information Act.
If confirmed, will you commit to working with me and the committee and the Congress generally to ensure that the administrative conference has a strong role to play in enhancing agency performance under the Freedom of Information Act?
GONZALES: I would commit to you, Senator, and I would look forward to working with you on that issue.
(Written) SEN. LEAHY: In October 2001, Attorney General Ashcroft reversed the prior Attorney General’s Freedom of Information Act policy, which had directed that, where discretion allowed, agencies should make information under FOIA unless disclosure would cause harm. Attorney General Ashcroft asserted the opposite position, informing agencies that the Department of Justice would defend the use of FOIA exemptions resulting in the greater withholding of unclassified documents. If confirmed as Attorney General, will you order a reverse in the Ashcroft FOIA policy and revert to a policy presumption based upon disclosure?
GONZALES: Open government is an important part of a free society. I have not had the opportunity to review Attorney General Ashcroft’s policy position with respect to FOIA or the effects of this policy, but if confirmed, I would undertake an examination of the Department’s policies and practices concern FOIA disclosures.
LEAHY: In the summer of 2002, Senators Bennett, Levin and I agreed on language governing the protection of Critical Infrastructure Information. That language was endorsed by the White House, and Senator Bennett stated at the time that industry groups had agreed that the compromise language would allow them to share information with the government without fear of the information being released to competitors or to other agencies that might accidentally release it. In the fall of 2002, however, an extremely broad exemption to FOIA for CII was quietly tucked into the Homeland Security Act, resulting in the greatest single rollback of FOIA in history. In the 108th Congress, with several other senators, I introduced S609, the Restoration of Freedom of Information Act. The text of the bill is identical to the text of the compromise reached on CII in the summer of 2002. I will introduce an identical bill in the 109th Congress. If confirmed as Attorney General, will you support this legislation?
GONZALES: This is not an issue with which I have great familiarity. I do, however, recognize the importance of both safeguarding critical infrastructure information that is submitted to the federal government by private industry so that the government mayt study that information in order to reduce our nation’s vulnerability to acts of terrorism, while at the same time protecting the openness and transparency of government. Consistent with these values, it is my understanding that the Department of Homeland Security issues its interim rule on Feb 20, 2004, implementing the Critical Infrastructure Information Act of 2002, which was contained in the Homeland Security Act of 2002, and sought additional public comment on those regulations at this time. I believe that it would be wise both to gain more experience with the operation of these new regulations and to take into consideration the comments of both industry and concerned citizens before making changes to the Act. If confirmed as Attorney General, I would look forward to reviewing your legislation and working with you on this critical issue.
