In perhaps one of the most significant moves to advance openness and accountability within the federal government in the last decade, Sens. John Cornyn (R-TX) and Patrick Leahy (D-VT) introduced bipartisan legislation to strengthen the public’s hand in obtaining information from federal agencies under the Freedom of Information Act (FOIA). Entitled the Openness Promotes Effectiveness in our National (OPEN) Government Act (S. 394), the legislation would:

• Allow the public to recoup legal costs from the federal government for improperly withheld documents;
• Expand the list of those eligible for fee waivers to include many nonprofits and blog writers;
• Establish a tracking system for requests, and require agencies to report on their 10 oldest pending requests, fee waivers approved and denied, and other ways FOIA requests are handled;
• Extend FOIA’s reach to information held by federal contractors;
• Create a system to mediate disputes between those requesting information and federal agencies through the Administrative Conference of the United States;
• Require annual reporting for the next three years on how often industry gives information to the government voluntarily and declares it to be Critical Infrastructure Information (CII), thus immune from public disclosure; and
• Require an analysis of how effective the CII program is in protecting the country’s critical infrastructure.

Plagued by loopholes allowing federal agencies to delay the release of information, charge exorbitant fees, deny fee waivers and post other obstacles to actually releasing documents to the public, FOIA has gone from a hallmark disclosure guarantee emulated around the world to a tool of last resort for those seeking to learn about government actions or obtain information in government’s possession. In 1996, Congress expanded FOIA’s guarantees to reach documents stored electronically. Prior to those changes, the law had been amended several times since Congress initially passed it in 1966, although it has now been many years since either the House or Senate held oversight hearings on FOIA. At a time when the White House has a reputation for being secretive, the OPEN Government Act is especially significant because it came from Cornyn, a Republican, which may foster bipartisan support. At a time when there are few champions of openness, a hallmark of democracy, this legislation is both a welcome sign that sunshine should prevail in government, and a serious proposal to strengthen government accountability and openness.