Congress exempt from access law

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That agent of access, however, is repelled at the doors of Congress — which exempted itself from the same law it passed 41 years ago to keep the executive branch in check.

As federal agencies labor to respond to thousands of requests for documents each year, Congress returns none. As lawmakers, such as Sen. Patrick Leahy, D-Vt., work to hasten the agencies' response times and sharpen other aspects of the law, they introduce no bills holding Congress to similarly strict standards.

"There are improvements that need to be made right now," Hunter Ridgway, chief of staff for Rep. John Olver, D-Amherst, said of the public's ability to access elements of the legislative branch.

But while Olver supports the idea of putting more public documents online so citizens can easily search for them, Ridgway said, his support stops short of expanding the Freedom of Information Act to Congress.

Olver is not alone.

Just three members in the Massachusetts delegation expressed support for making themselves and all 535 members of Congress subject to the law, commonly referred to as FOIA. The Eagle conducted the survey by phone and e-mail.

Rep. James McGovern, D-Worcester, is "absolutely supportive of opening Congress to FOIA," said Michael Mershon, his spokesman.

Rep. Barney Frank, D-Newton, and Sen. Edward M. Kennedy, D-Mass., expressed similar support. McGovern and Frank offered one exception: that private correspondence between them and their constituents not be released, to protect personal information.

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The law was enacted in 1966 after 11 years of congressional hearings and debate, creating the most potent citizen inquiry tool in the world, according to the Congressional Research Service, a think tank exclusively serving Congress.

The law, which President Lyndon B. Johnson signed with delay and reluctance, turned the idea of government accessibility on its head: It gave citizens the right to seek government records without explanation. Rather than citizens having to justify their requests, it is now the government that must make a case for not disclosing documents.

The law's authors never intended it to encompass the legislative branch. The argument is twofold.

First, lawmakers say they operate largely in the open. Public hearings are now broadcast on CSPAN, their voices are transcribed and posted online in the Congressional Record, and the final product of their deliberation becomes public law.

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The second pillar is constitutional, with many lawmakers saying FOIA would contradict the "speech or debate" clause of the Constitution, which allows members to say anything, about anyone, without fear of slander. FOIA requests for documents that help them prepare their speeches would violate the clause and be unconstitutional, many members say.

"Applying the Freedom of Information Act to the Congress would interfere with Congress' privileges regarding its papers, (would) pose enormous administrative burdens on tiny congressional offices and (would) involve Congress in litigation filed by persons appealing a denial of their FOIA requests," Rep. Edward Markey, D-Malden, said in a statement.

But the arguments aren't roundly accepted in legal circles. David Vladeck, a law professor at Georgetown, doesn't think much of the constitutional argument.

"The speech or debate clause has nothing to do with this," he added. "I think the real reason is that Congress did not want the burden that comes with FOIA."

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Open government advocates say Congress could improve its transparency. Right now, the public doesn't know who lawmakers meet with behind closed doors, can't always see the process by which laws are drafted and don't have access to reports produced by the nation's premier public think tank, the Congressional Research Service.

Still, the emphasis of expanding FOIA should be focused on the web of federal agencies whose work is done in citylike buildings across Washington, said Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy.

"There are improvements that could be made in congressional disclosure, but on the whole, I think they are less pressing than the need to improve executive branch compliance," he said.

In the survey of Massachusetts lawmakers, five expressed opposition to expanding FOIA to cover Congress, citing constitutional reasons or saying Congress operates openly. At the same time, they supported strengthening it for the executive branch, and some said measures are needed to make Congress more transparent.

They include: Sen. John F. Kerry and Reps. Michael Capuano, William Delahunt, Markey and Olver, all Democrats.

"Sen. Kerry is open to discussing other ways of making the work of the Senate more accessible to the public," said Brigid O'Rourke, his spokeswoman.

Three lawmakers did not respond to the survey over a two-day period last week: Reps. Stephen Lynch, Richard Neal and John Tierney, all Democrats.

And one, Rep. Marty Meehan, came down somewhere in the middle, saying, "FOIA reforms should be considered, including who and what is exempted."


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