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Justice Department Withdraws Comments on FOIA Reform Bill

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Proposed FOIA Amendment Legislation Introduced

In a development that holds the possibility of leading to significant improvements in the Freedom of Information Act, two counterpart bills that would amend the FOIA were introduced in the United States Senate and the House of Representatives last week.

On February 16, not long after the commencement of the 109th Congress, Senate Judiciary Committee members John Cornyn (R-Tex.) and Patrick Leahy (D-Vt.) introduced a bill entitled the "Openness Promotes Effectiveness in our National Government Act of 2005" (called the "OPEN Government Act of 2005"), S. 394, which according to their joint statement "is designed to strengthen laws governing access to government information, particularly the Freedom of Information Act." It contains a dozen provisions, most but not all of which would directly amend the text of the FOIA. On the same day, an identical bill, H.R. 867, was introduced in the House by Rep. Lamar Smith (R-Tex.), a member of the House Judiciary Committee.

Senator Leahy is a longtime advocate of both openness in government and the FOIA in particular who has been the leading Democrat in the Senate on FOIA-related issues for more than two decades. He currently is the Ranking Minority Member of the Senate Judiciary Committee, which holds jurisdiction over the FOIA and has considered its amendment several times in the past. Senator Cornyn, who is in his first Senate term, is a former Texas State Attorney General who likewise holds a strong interest in government openness stemming from his background in that area of law and policy in Texas. He currently is the chairman of an immigration-related subcommittee of the Senate Judiciary Committee, but due to delays in the announcement of subcommittee alignments it is not yet clear which Judiciary Committee subcommittee will have jurisdiction over this bill. It similarly remains unclear which subcommittee of the House Government Reform Committee will have jurisdiction over the House counterpart bill there. It also is possible, due to the presence of certain non-FOIA provisions in the bills, that other committees and subcommittees, such as those dealing with homeland security matters, will become involved.

The Cornyn-Leahy bill, as it is most commonly being referred to, contains the following legislative proposals:

• A provision regarding the charging of FOIA fees to a "representative of the news media." It would amend the Act to require that agencies "consider the prior publication history of the requester" or alternatively "the requestor's [sic] stated intent" in determining news media status for fee purposes. S. 394, Sec. 3. This proposal addresses a part of the Act that was added in the 1986 FOIA amendments and, as a technical fee matter, falls under the jurisdiction of the Office of Management and Budget. See, e.g., FOIA Update, Vol. VIII, No. 1, at 1.

• A provision regarding the possible recovery of attorney fees by a FOIA requester who prevails against an agency in court. It would amend the Act to specifically provide attorney fee eligibility for any FOIA requester who obtains a "substantial part of [his, her, or its] requested relief" in court or whose court case "has been a catalyst" for such relief. S. 394, Sec. 4. As such, it would overrule recent case law on the point. See Freedom of Information Act Guide & Privacy Act Overview (May 2004), at 830-31 & n.414.

• A provision amending the administrative "sanctions" provision of the FOIA -- see Freedom of Information Act Guide & Privacy Act Overview (May 2004), at 844-46 -- by requiring regular reporting by the Attorney General and the Office of Special Counsel on its use. See S. 394, Sec. 5.

• A provision regarding the FOIA's time limits that would provide that they begin to run when the request "is first received by the agency" and also that they "shall not be tolled" without the requester's consent thereafter. S. 394, Sec. 6(a).

• A second provision regarding "time limits" that would greatly constrain the use of FOIA exemptions in any case in which they are not met. This provision would amend the FOIA to state that any "fail[ure] to comply with the [Act's] time limit[s]" would preclude the agency from "assert[ing] any exemption" that does not involve (1) national security, (2) "personal private [sic] information protected by section 552a," (3) proprietary information, or (4) information the disclosure of which "is otherwise prohibited by law." S. 394, Sec. 6(b). The second of these exceptions encompasses only information covered by the Privacy Act of 1974 and does not on its face include all other sensitive personal privacy information. Additionally, this proposal provides that "[a] court may waive" it if "the agency demonstrates by clear and convincing evidence that there was good cause for the failure to comply with the applicable time limit provisions." Id.

• A provision that would establish a "tracking system" for FOIA requests, one that would involve the assignment of "tracking numbers" for all requests and each agency's establishment of "a telephone line or Internet service" through which requesters could obtain information about their requests' status. S. 394, Sec. 7. Under this proposal, an agency would be expected to provide "an estimated date" for each request's completion. Id.

• A provision that would amend the text of Exemption 3. Under it, prospective statutes would not qualify as Exemption 3 statutes unless they "specifically cite[]" the FOIA when enacted. S. 394, Sec. 8. This would be a distinct change from the way in which Exemption 3 traditionally has operated. See, e.g., FOIA Post, "Agencies Rely on Wide Range of Exemption 3 Statutes" (posted 12/16/03).

• A provision that would expand upon the data that agencies must include in their annual FOIA reports. It would amend the reporting requirements to include (1) "data on the 10 active requests with the earliest filing dates pending," (2) response data based upon "the date on which the request was originally filed," (3) data on "fee status requests," and (4) data that "distinguish between first[-]person requests for personal records and other kinds of requests." S. 394, Sec. 9.

• A provision that would broaden the FOIA's definition of "record" to include information "that is maintained for an agency by an entity under a contract between the agency and the entity." S. 394, Sec. 10.

• A provision that would create the availability of "mediation services" for FOIA requesters within a small agency known as the Administrative Conference of the United States (ACUS). S. 394, Sec. 11. ACUS has not existed since 1995, when it lost its funding, but Congress recently moved to "reauthorize" it to receive appropriations and be revived as an agency at some point in the future. This proposal would take advantage of that development also by giving ACUS an advisory role on such matters as FOIA funding.

• A provision pertaining to the "critical infrastructure information" that is obtained by the Department of Homeland Security and qualifies for Exemption 3 protection under the FOIA. Such information is governed by Section 214 of the Homeland Security Act of 2002, 6 U.S.C.A. § 133 (West Supp. 2003). See, e.g., FOIA Post, "Critical Infrastructure Information Regulations Issued by DHS" (posted 2/27/04). This provision would require the Government Accountability Office to conduct a study of Section 214's overall implementation, including its use under Exemption 3. See S. 394, Sec. 12.

• A provision regarding the federal government's personnel policies as they pertain to governmentwide FOIA administration. It would require the Office of Personnel Management to examine whether a series of possible changes in personnel policies could, among other things, "provide greater encouragement to all Federal employees to fulfill their duties under [the FOIA]" and "enhance the stature of officials administering [the FOIA] within the executive branch." S. 394, Sec. 13.

If the introduction of this proposed legislation does lead to the enactment of major FOIA amendments during the 109th Congress, it will continue a distinct legislative pattern for the FOIA that now traces back nearly fifty years. The FOIA was enacted in 1966 (taking effect a year later, on July 4, 1967) after approximately ten years of legislative deliberation that began in late 1955. It then was the subject of major legislative revisions almost exactly at ten-year intervals -- in 1974, 1986, and 1996 -- over the course of the next thirty years.

During what is now approaching a decade since enactment of the Electronic Freedom of Information Act Amendments of 1996, as agencies have implemented that statute and gained further experience with the administration of the FOIA as amended, they have been able to identify both substantive and procedural reforms that can improve its operations from their perspective. See, e.g., FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01) (discussing the possibility that the Supreme Court's Exemption 5 decision in Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), would "necessitate[] a legislative remedy, as the Supreme Court itself suggested might be the case"). Wide-scale FOIA amendment activity in the 109th Congress now carries the prospect of legislative relief for agency concerns with the FOIA's operation as well. It remains to be seen exactly what mix of amendment provisions might gain favorable congressional attention as the current legislative process unfolds.

In the past, legislative consideration of amendments to the FOIA has both proceeded slowly and accelerated abruptly at various times. Work on the 1974 FOIA amendments began not long after the FOIA took effect in the late 1960s and suddenly accelerated in the wake of the Watergate scandal in the fall of 1974, when Congress both amended the FOIA and enacted the Privacy Act. Work on what became the 1986 FOIA amendments began in the Justice Department in late 1979, stalled at the end of the Carter Administration, and then was very actively revived and expanded during the Reagan Administration in the early 1980s. See, e.g., FOIA Update, Vol. III, No. 1, at 1-2. It reached fruition as part of the Anti-Drug Abuse Act of 1986. See FOIA Update, Vol. VII, No. 4, at 1-2. The groundwork for the 1996 FOIA amendments began in 1989, at the beginning of the first Bush Administration, see FOIA Update, Vol. X, No. 2, at 1-2, and that activity abruptly culminated more than seven years later, see FOIA Update, Vol. XVII, No. 4, at 1-2, 10-11. See also, e.g., FOIA Update, Vol. XIII, No. 2, at 1.

This history of FOIA legislative activity has followed a remarkably consistent ten-year cycle, with only Congress's action in 1974 (which may well have been accelerated by a year or two due to the extraordinary events of the Watergate era) varying from the pattern. Thus, from an historical perspective, the enactment of major FOIA amendments during this current Congress, by the end of 2006, would continue the FOIA's half-century-old pattern almost exactly.  (posted 2/25/05)