The U.S. Senate unanimously passed a bill Aug. 3 that would strengthen the Freedom of Information Act and close existing loopholes. The vote ended months of deadlock on the measure and has brought FOIA one step closer to reform.
The 110th Congress has seen the introduction of legislation proposing the most significant overhaul to the Freedom of Information Act in more than a decade, when the Electronic Freedom of Information Act Amendments of 1996 helped bring federal public records law into the modern age.
The legislation aims to create a tracking system for FOIA requests; expand upon current reporting standards for agency compliance; establish penalties for agencies that do not respond to requests within the time limits under the law; and further enable requesters to collect attorney fees if they have to take their requests to court.
Charles Davis, executive director of the National Freedom of Information Coalition, called the bills “huge advancements in the inner workings of FOIA.”
The bills would also establish an Office of Government Information Services, which would serve an ombudsman role for the federal government, providing guidance to FOIA requesters, reviewing agency policies and making policy recommendations to Congress.
Inside the bills
The House version of the bill, known as the Freedom of Information Act Amendments of 2007 (HR 1309), passed with bipartisan support 308-117 in March. The bill was sponsored by Rep. William Lacy Clay, D-Mo.
The Openness Promotes Effectiveness in Our National Government Act (SB 849), known as the OPEN Government Act, is a bipartisan Senate bill co-sponsored by Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas. The bill differs from House legislation only slightly.
In a statement before the Senate Judiciary Committee in June, in advance of the Freedom of Information Act’s 41st anniversary, Leahy stressed that “responsive government and transparent decision-making are bedrock American values,” and that “FOIA remains an indispensable tool in shedding light on bad policies and government abuses.”
The bills do not open or close access to any categories of public records but are intended to step up enforcement of the law and streamline existing processes for requesting records.
One of the findings enumerated in the OPEN Government Act is that “in practice, the Freedom of Information Act has not always lived up to the ideals of that act,” and the legislation aims to fix that.
“In the original drafting of the bill by Sen. Cornyn’s staff … they went out and asked scores of people in the requester community what kinds of problems they were having with FOIA,” said Pete Weitzel, coordinator of the Coalition of Journalists for Open Government.
Weitzel characterized both pieces of legislation as “process bills,” aimed at persuading agencies to meet existing deadlines and making technical changes to reporting requirements and attorney fee recovery provisions, rather than substantive changes to the law.
“A lot of what people tell me is broken about FOIA isn’t content-based; it’s about how agencies can foot drag, and drag requests through the bureaucracy,” Davis said.
After the OPEN Government Act received a favorable report from the Senate Judiciary Committee, progress was stalled indefinitely when a Republican senator placed an anonymous “secret hold” on the bill in May.
Secret holds are a tradition derived from the parliamentary procedure of the U.S. Senate that have not been without controversy from open government advocates and within Congress. The secret hold stems from Rule VII — Morning Business of the Standing Rules of the Senate — which states that “no motion to proceed to the consideration of any bill … shall be entertained by the presiding officer, unless by unanimous consent.” In practice, this allows senators to place a secret hold by notifying their party leaders in the Congress of their intention to object to a motion to move a bill forward through the consideration process, eliminating “unanimous consent” and effectively halting the bill.
Sen. John Kyl, R-Ariz., after being outed — in part by work of the Society of Professional Journalists — admitted to placing the hold because of Justice Department concerns about the act. One area of contention was a clause that removed agency abilities to exempt records from disclosure for failure to comply with statutory deadlines. Concern was expressed that this could result in the release of information that could damage national security.
In the wake of this disclosure, FOIA advocates lambasted Kyl for using secrecy to block a bill aimed at open government.
July saw a resurgence of commentary from elected officials and newspaper editorial boards regarding the stalled OPEN Government Act, due in part to the anniversary of the original FOIA legislation and the release of the Knight Open Government Survey by the National Security Archive at George Washington University.
In late July, Leahy’s and Cornyn’s staffs sat down with Kyl’s staff to discuss the OPEN Government Act. The opposing parties were able to work out their differences and bring the bill to the Senate floor for a vote before the summer recess.
The most recent Knight Open Government Survey, which annually examines the oldest requests still pending at federal agencies, characterized FOIA as “plagued by delay” and described meeting its statutory deadlines as “an exception rather than a standard practice.”
The survey revealed that the oldest pending request to the federal government under the Freedom of Information Act dates back to 1987. It also showed that five agencies have pending requests that are at least 15 years old, and found that 10 agencies misrepresented the extent and age of their FOIA backlogs to Congress in their most recent fiscal year report.
National Security Archive staff counsel Kristin Adair said the results of the most recent Knight Open Government Survey highlighted the need for Congress to amend FOIA, particularly to improve agency tracking and create penalties or incentives for deadline compliance.
The proposed changes to FOIA would require each agency to assign tracking numbers to each request and notify the requester within 10 days, as well as create a telephone or Internet service to provide status reports for requests and give estimated dates of completion.
“The law requires agencies to assign tracking numbers to each request, which sounds sort of ridiculous in the modern world … but some of these agencies, they get a request, and who knows? They just throw it in a box and hope someone will deal with it,” Adair said.
Since the National Security Archive requested copies of agencies’ 10 oldest FOIA requests early this year, one-third of agencies have failed to respond at all. Under FOIA, agencies must respond to a request for public records within 20 business days. A dozen agencies have yet to respond to similar requests dating back to its 2005 survey.
Adair blamed loopholes in the current Freedom of Information Act for allowing agencies to get away with noncompliance and said that incentives and penalties are the key to reducing agency backlogs.
In hearings last year, the Justice Department revealed that it found no examples of anyone being penalized for failing to comply with FOIA.
The FOIA Amendments of 2007 and the OPEN Government Act aim to change that, though they both dropped their original “carrot and stick” proposal, where agencies would lose exemption privileges, to gain passage.
In the original versions of the legislation, agencies that failed to respond within 20 business days would lose the ability to claim certain exemptions. Exceptions were made for privacy and national security, and most of what would be at risk for agencies would be disclosure of intra- and inter-agency memorandums, which they had a direct incentive to prevent.
“A lot of people raised concerns that some of this information legitimately should not, under any circumstances, be made public,” Weitzel said.
The House and Senate versions of the bill instead imposed a financial penalty that prevents agencies from being able to collect any fees for records if they fail to meet the 20-day statutory response deadline, and requires any fees already collected to be refunded to the requester.
This provision may have some effect, Weitzel said, though the amount of money collected by agencies through records fees represents only about 1.5 percent of the total cost of FOIA, according to research by the Coalition of Journalists for Open Government.
Changes to the policies surrounding litigation in FOIA cases would allow requesters to recover attorney fees and court costs not just when the court makes that determination, but also in cases where records are voluntarily released by an agency after litigation has already begun. Compromise language in the Senate bill declared that requesters would not be able to recover in cases where their claim was found to be “wholly insubstantial.”
Weitzel characterized the changes to attorney fees provisions as putting some fairness back in the process and said they will stop dissuading requesters from seeking legal remedies.
In many cases, after an agency refuses to provide records initially and on appeal, the requester will sue. However, based on judicial precedent, if the agency releases all or some of the records along the way, before being ordered to do so by a court, or if the parties resolve in an out-of-court settlement, the requester cannot recover attorney fees, Weitzel said.
He does not expect the changes to significantly alter the number of FOIA cases that are filed, which average between 350 and 400, and estimated that recovering attorney fees under the changes to FOIA would cost between $200,000 and $250,000 per year.
His estimation is far less than that asserted by the Congressional Budget Office, which expects the changes will bring about 1,000 more FOIA cases each year.
Adair and Weitzel criticized the current reporting standards for FOIA as not accurately showing the whole story.
“Right now, the reporting and the information that has to be reported and the information itself does not give a complete picture,” Weitzel said.
Adair pointed out that for the Knight Open Government Survey, agencies either responded quickly or not at all, and the responses at both ends of the spectrum get left out in current compliance reporting.
“Median is a terrible number. It means nothing,” Adair said.
Under the proposed legislation, annual reporting requirements would be expanded to include determination periods for all requests, reporting on fee waivers and expedited review requests, and the mean, median and range in number of days to provide information to the requester and make determinations on administrative appeals. Agencies would also have to report information on their 10 oldest pending requests and administrative appeals.
The creation of an FOIA ombudsman, in the form of the Office of Government Information Services, would bring to the federal government something that has become popular at the state level in recent years. The House and Senate versions of the bill differ in determining which agency the office should operate under but assign it similar responsibilities.
At least half of the states have created either a public record ombudsman or an independent agency, or expressly assigned ombudsman-type responsibilities relating to the freedom of information to the attorney general’s office. Overall, ombudsmen have been “enormously successful” in states where they exist, Davis said.
Many of the remaining states leave appeals to the court system as a requester’s only option for relief, enforcement and clarification of the law’s intent.
“The devil’s in the details, as it always is, on those sorts of ombudsman-type positions in the federal government. … It comes down to how much independence they’re given, how much funding they’re given,” Davis said.
Success at the federal level will depend a lot on who is appointed to the office and details that remain to be worked out in the Congress, Weitzel said.
The OPEN Government Act also clarified that FOIA applies to government documents held by private contractors, and protected fee waivers for “legitimate journalists, regardless of institutional association,” granting this privilege to bloggers and other online journalists for the first time.
FOIA at the state level
While FOIA may be having a big year at the federal level, it was a fairly quiet year for most states, with the expected flow of discussion around exemptions and exceptions and only a few states proposing full overhauls of their freedom of information laws, Davis said.
After years of hanging on to some of the most lax freedom of information laws in the country, Pennsylvania appears to be on the brink of reform. Currently, Pennsylvania defines only two categories of records — minutes, orders and decisions; or accounts, vouchers and contracts — as public, based on law dating back to 1957. A number of proposals have been introduced in the legislature, and the governor has made reforming public records law a part of his agenda.
“It would be very significant if we could get some movement out of Pennsylvania,” Davis said.
States continue to show a profound interest in two major categories of public records law, national security and personal privacy, but these exemptions can become contentious when they “look more like secrecy than privacy,” Davis said.
The trend for states to be “fighting identity theft in very ham-handed, overbroad types of ways” is still continuing, but luckily not many of those proposals passed, Davis said.
Another disturbing trend is states passing legislation aimed at narrow classes of individuals, particularly law enforcement and other public servants, Davis said.
Texas enacted a handful of measures restricting the release of personal information of judges, justices and attorneys, and North Carolina removed judges’ addresses from public record.
However, not all trends from state public information laws are negative.
The increasing number of states that have mandated public records training for their public servants is a huge victory, Davis said.
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