Update 12/5/07
Legislative Update 12/5/07 FOIA: Earlier today, Sen. Leahy and Cornyn refiled their FOIA reform bill, hoping to meet House objections. They are pushing for quick passage in Senate, followed by quick adoption of the Senate bill by the House, putting the legislation on the President’s desk before the holiday break. Leahy said there’s a “strong chance” there will be action in the Senate in the next day or two. The new Senate bill makes two changes from the August version. It incorporates a “pay-go” provision to keep the legislation expense neutral. The House passed a “pay-go” mandate for all legislation earlier this year and wasn’t going to budge on the bill without it. And it drops Section 8, the impact statement, which we had suggested several years ago when the bill was first drafted by Sen. Cornyn. Section 8 required that the language of any new legislation amending FOIA include a specific citation to FOIA and its US Code section number. The purpose was to send up a flag if anyone tried to weaken FOIA. For an example, see the Farm Bill item below. Unfortunately, because of an inadvertent but serious drafting error in an otherwise harmless floor amendment approved by the Senate in the rush to pass the bill before the August break, the revised Section 8 eliminated existing criteria that must be established to approve any statutory exemption. If the revised bill passes, we are hopeful that Sens. Leahy and Cornyn will introduce a new Section 8 bill early next year. If, because there is still a difference between the Senate and House bills on when the 20-day clock would start running, and the Senate bill does not have an additional provision of the House bill that establishes in law the presumption that records are public unless disclosure would do some harm – in effect a statutory reversal of the Ashcroft memo. The new OPEN Government Act does retain these important reform provisions. It would:
- Penalize agencies, for the first time, if they missed the 20-day statutory deadline for responding to a FOIA request. The penalty – waiver of the processing fee.
- Create an Ombudsman to assist FOIA requestors and provide an alternative to costly and lengthy litigation.
- Clarify that FOIA applies to government records held by outside private contractors;
- Establish a FOIA hotline service for all federal agencies and electronic tracking of all requests.
- Reestablish the right of requesters to recover legal fees if they file suit and “substantially prevail,” without the case going to final court judgment.
- Improve the reporting requirements to create greater performance accountability.
