At today's Senate Judiciary Committee hearing, Sen. John Kennedy (R-LA) questioned witnesses about FOIA.
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NewsTranscript
00:00and now the senator from Missouri. So we'll go to Senator Kennedy.
00:22Let me start over. My mic was off. Thank you all for being here. I listened to all
00:27of you with great interest. Professor, do you believe that people respond to
00:35incentives? Thank you Senator. I do believe that people respond to incentives. Do you
00:45believe that what you allow is what will continue? I suppose I do.
00:56I listened to all of you talk about enhancing affirmative disclosure
01:04requirements, strengthening the presumption of disclosure. I listened to you talk about
01:13consultants. I listened to you talking about the need for a public interest
01:21balancing test. But those can be ignored just as easily as every other part of the statute.
01:33Why don't you just create personal liability for the person responsible for turning over
01:38the documents? Certainly Senator. There are systems, other jurisdictions around the world
01:46that do have in fact personal penalties for government officials. Do you recommend it for us?
01:50I don't think that we're at the point where we necessarily have to take such a step in order
01:54to drastically change the incentives. Why not? I mean both administrations, all administrations stall and restall in turning over documents to the American people. Don't they?
02:00Does anybody disagree with that? It's not a Democrat thing or Republican thing. It's an executive branch thing, isn't it?
02:16It absolutely is. I do not disagree with that. So why don't we hold them, the people responsible, personally responsible. I'm not saying not afford them due process. You may want to require bad faith with a reasonable, not an impossible definition of bad faith. I mean if you want to solve this problem, why don't you just create personal liability, Mr. Howell?
02:40I think that's a terrific idea. Right now the mechanism to have liability is basically an attorney's fees and those are rarely given out. So the government really is never forced to pony up.
02:51Well the employees don't care if the government gets hit with attorney's fees, do they?
02:56Correct. And that's why the Department of Justice is willing to tolerate us suing them a hundred times because we all pay for their lawyers.
03:03Look, we can write and rewrite statutes all we want to, but it is clear that people in the government are not responding to Freedom of Information Act requests in bad faith.
03:18Sometimes they need more time, but I'm talking about in bad faith. That's clear. And it happens on both sides.
03:27So instead of just rewriting new laws and new rules that they're going to ignore, why don't you just hold people personally responsible?
03:42What about it, Doctor?
03:44I actually fully agree and I would point out that there's a mechanism in the FOIA statute currently where
03:52if it turns out that there's evidence of an agency or an agency employee intentionally withholding documents without a reasonable basis, a judge could, in issuing that order, make that finding.
04:07And when's the last time that happened?
04:09Almost never.
04:10Yeah, it hasn't happened in the history of ever, has it?
04:13No.
04:14Yeah, that's right.
04:15And until Congress makes it very clear that we're serious about this, we're going to be equal opportunity pit bulls here and say,
04:28regardless of who is running the executive branch, you have an affirmative obligation to turn over documents.
04:35And if you don't do it, you're going to be personally liable.
04:39That's going to work, isn't it?
04:43Well, I would hope so.
04:45Of course, as you know, as a former law professor, there are issues with, you know, the executive branch claiming immunity for these employees.
04:52I'm not saying deny them due process.
04:54Right.
04:55I'm not saying an ordinary negligent standard.
05:02I'm just, I'm saying that if some person is being an obstructionist, and you can prove it, they ought to be held personally liable.
05:14We wouldn't have to do it for long.
05:17Senator Whitehouse.
05:20I still had nine seconds left.
05:23Proceed.
05:26No, I yield my back.
05:29But I do want to say Professor Whitehouse has some interesting thoughts about enforcing orders that he and I have talked about.
05:39So I'm going to listen to him carefully here.
05:42Senator Whitehouse.
05:43Senator Kennedy has predicted my line of questioning.
05:48I know that we're here to talk about FOIA.
05:52But at least in theory, congressional.
05:55Congressional.
05:56Congressional.