Update 3/25/05
Sunshine Week, a tremendous national success, is behind us and here in Washington were assured the cherry blossoms are only a week or so away. Still, it is quite gray. The euphoria produced by a bill (The OPEN Government Act, S 394) that would truly fix significant parts of FOIA, and by the quick movement out of committee of a Faster FOIA bill (S 589) to create a special study commission, had faded by weeks end. And in two separate discussions, one with FOIA officers, the other with access advocates, key congressional aides talked candidly about the objections they are hearing.
This week has been a walk on the dark side for James Ho, staff counsel to Sen. John Cornyn, and principal drafter of the OPEN Government Act. Thursday he and Tara Magner, co-sponsor Sen. Pat Leahys aide on open government t issues, were bombarded with hostile questions at a meeting of the American Society of Access Professionals the people who process FOIA requests. Magner had earlier heard similar objections from access officials at the State Department.
The focus for much of the opposition is Section 6, which creates an incentive for agencies to respond to a FOIA request within the 20 days required by law. The penalty for missing the deadline: The agency cant assert the information falls with an exemption except for national security or personal privacy reasons. At one point, Ho told the ASAP audience, Section 6 as drafted wont be enacted into law. He quickly added, however, that there will need to be some kind of substitute provision that serves as a strong incentive to prod the agencies to move FOIA requests forward.
Ho also said he had heard objections to other sections dealing with the definition of a reporter; the payment of legal costs a requester gets records sought after filing a law suit, even if it doesnt go to trial; setting up a tracking system for requests; and requiring legislation that affects FOIA to have an impact statement saying so.
The OPEN Government Act (S 394) is a solid piece of legislation that will fix many features that dont now work and will make it easier to get records. But its likely that the strong but so far quiet opposition combined with a general lack of enthusiasm for FOIA on the Hill is going to make movement of S 394 slow, at best.
The Faster FOIA could become the driver, then, for a broader review and discussion of FOIA problems that would create momentum for the OPEN Government Act. It deserves our support as well. How?
We continue to need strong examples of FOIA at work and how people are making beneficial use of the information retrieved.
We continue to need examples of unreasonable delays and refusals to release information.
We continue to need tough reporting on the problems with FOIA and columns and editorials that help explain the importance of FOIA and of the changes this bill provides to benefit ordinary people.
Pete Weitzel