Freedom of Information Legislation Moving Forward

The week of March 14 was an important week for open government, with the introduction of two pieces of legislation to improve the Freedom of Information Act (FOIA) — the Faster FOIA Act, and the Restore FOIA Act. Additionally, the Senate Judiciary Committee held the first oversight hearing on FOIA since 1992. Faster FOIA Act Moves to the Full Senate Sens. John Cornyn (R-TX) and Patrick Leahy (D-VT) introduced the bipartisan Faster FOIA Act March 10, the second FOIA bill which the two senators have introduced in the 109th Congress. On Feb 16, Cornyn and Leahy also introduced the OPEN Government Act, which seeks to strengthen citizens’ ability to use FOIA. The Faster FOIA Act (S. 589) aims to alleviate the long delays which many FOIA requesters experience at federal agencies. The FOIA itself requires agencies to respond to requests within 20 working days, but often requesters receive answers weeks, months, or even years after that deadline. As the National Security Archive reported in 2003, the oldest pending FOIA requests date back to the late 1980s. Significant backlogs are common among agencies, and the problem is not getting better. The legislation would create a 16-member Commission on Freedom of Information Act Processing Delays, which would study how to lessen delays in the FOIA process. Identified members of Congress would appoint 12 of the Commission members, and at least four of these members must have experience using FOIA in the nonprofit, academic, or media sectors. The Attorney General, the Director of the Office of Management and Budget, the Archivist of the United States, and the Comptroller General would designate the four remaining members. The Judiciary Committee reported out the Faster FOIA bill on a unanimous voice vote March 17, and the bill now moves to the full Senate for a vote. Support for FOIA Legislation Voiced at Hearing Witnesses appearing before the Senate Judiciary Committee’s subcommittee on Terrorism, Technology and Homeland Security March 15 expressed tremendous support for the OPEN Government Act, and argued that reforms to the Freedom of Information Act are necessary to ensure an open, accountable and democratic government. As previously reported in the Watcher, the OPEN Government Act (S. 394) would improve the current FOIA legislation so that the public could recoup legal costs of suing for improperly withheld records, extend fee waivers to nonprofits and bloggers, require tracking of requests, and mandate reporting on the Critical Infrastructure Information program. (The full analysis is available at OpenTheGovernment.org .) The measure is an important bipartisan effort, and has picked up Sens. Johnny Isakson (R-GA) and Lamar Alexander (R-TN) as cosponsors. In his opening statement for the hearing, Cornyn stressed the need for bipartisan support and action on open government legislation, stating, "This is a bipartisan problem – and we need a bipartisan solution to solve it. As Senator Leahy and I have both noted on occasion, openness in government is not a Republican or a Democratic issue. Any party in power is always reluctant to share information, out of an understandable – albeit ultimately unpersuasive – fear of arming its enemies and critics." Meredith Fuchs from the National Security Archive testified that the current FOIA backlogs are a problem. “A key part of empowering the public, however, is giving them the information they need in sufficient time for them to act.” She noted, “The OPEN Government Act of 2005 will go far to motivate agencies to process FOIA request and to process in a timely fashion.” Thomas M. Susman from Ropes & Gray LLP told the subcommittee that “establishing an Office of Government Information Services (OGIS), is the most important provision in the bill. The OGIS will assist the public resolving disputes with agencies as an alternative to litigation, review and audit agency compliance activities, and make recommendations and reports on FOIA administration.” Lisa Graves from the American Civil Liberties Union noted the importance of the bill’s assistance in establishing a strong presumption in favor of disclosure, and clarifying existing interpretations of FOIA’s nine exemptions. The hearing coincided with Sunshine Week, a project of newspapers, journalists and media outlets to promote open government that ran last week. As the first FOIA hearing held by the Senate since 1992, the session was a strong indication of the rising importance of freedom of information issues. Full testimony from the panel is available through the Judiciary Committee. Restore Freedom of Information Act Reintroduced Leahy also chose Sunshine Week as the opportunity to reintroduce the Restore FOIA bill, which would amend the Homeland Security Act of 2002 to limit “Critical Infrastructure Information” provisions in the law that create new exemptions from FOIA. The bill, S. 622, is cosponsored by Sens. Carl Levin (D-MI), Russ Feingold (D-WI), and Joseph Lieberman (D-CT), but lacks the bipartisan support of the two other FOIA bills. The language of the bill is identical to the previous version of the legislation introduced during the 108th Congress. It would fix the language in the Homeland Security Act that provides a FOIA exemption for “critical infrastructure information” (CII). Companies that voluntarily submit information about critical infrastructure vulnerabilities receive an overly broad and vague exemption from disclosure. It allows for corporate immunity and prevents the government from acting on the information to protect the public. Since its inception, the CII program has resulted in 29 submissions of information of which the details are unknown. OMB Watch unearthed the CII numbers as a result of a summons submitted in the District of Columbia Circuit Court to force the Department of Homeland Security to respond to a FOIA request for the information. The provisions in the Restore FOIA Act derive from compromise language that Leahy, Levin and Sen. Robert Bennett (R-UT) developed during 107th Congress in 2002 when the Homeland Security Act was under discussion in the Governmental Affairs Committee. Although the Senate passed the compromise language, more restrictive House language made it into the final version of the bill. Among other provisions, the language would:
  • remove restrictions on the government’s ability to use the information to fix vulnerabilities;
  • eliminate criminal penalties for whistleblowers that reveal CII when reporting waste, fraud and abuse; and
  • narrow the FOIA exemption to specific records submitted as CII.
Differences between the Homeland Security Act and the Restore FOIA Act are detailed further in this chart.
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