NEWS MEDIA UPDATE · WASHINGTON, D.C. · Freedom of Information · March 8, 2007
FOIA amendments set for vote in House
March 8, 2007 · A bill designed to make the Freedom of Information Act more requester-friendly has won the backing of a key House committee and will likely be put to a vote before the full body within days, coinciding with next week’s Sunshine Week events.
Some Republicans attempted to remove the bill’s liberalized attorney fees provision during today’s meeting of the House Committee on Oversight and Government Reform, but Democrats rejected those proposals and the bill passed the committee substantially unchanged.
The committee did approve one amendment that will require agencies to explain the legal basis for making a redaction to an otherwise releasable record when the basis for the redaction in itself will not result in sensitive information being released.
The bill, named the Freedom of Information Act Amendments of 2007, would implement a tracking system for individual public records requests, increase FOIA reporting requirements for federal agencies and create a federal ombudsman to help mediate records disputes between requesters and government agencies. The law would also make it easier for a judge to award a requester attorney fees if the requester must resort to litigation.
The current legal standard requires a requester to “substantially prevail” in a lawsuit before attorney fees can be awarded. As a result, some federal agencies wait to turn over records until after a lawsuit is filed but before a judge decides which party prevails in the case. This leaves some requesters with substantial legal bills, even though the agency capitulates and turns over the public information.
Rep. Bill Sali (R-Idaho) said a liberalized attorney fees policy would motivate agencies to fully litigate those cases rather than come to a settlement with the requester, defeating the main purpose of FOIA, which is to get records into the hands of requesters as quickly as possible.
“The question it raises in my mind is: Why would any agency want to settle?” Sali said.
Rep. Bruce Braley (D-Iowa) disagreed, saying the new provision would give agencies incentives to immediately turn over records when they are legally required to do so, and not allow agencies to merely wait to get sued before complying with the provisions of FOIA.
Republicans also attempted to block the provision of the bill that would reverse the so-called “Ashcroft memorandum,” which changed the presumption agencies rely on when deciding whether to release a potentially exempt record. In late 2001, then-Attorney General John Ashcroft issued a memo informing agencies that the Department of Justice would back in court an agency’s decision to withhold a record so long as there was any legal basis for doing so.
That was a change from the policy of his predecessor, Janet Reno, who said records should be released so long as no foreseeable harm would result from such a disclosure.
Rep. Darrell Issa (R-Calif.) introduced an amendment attempting to block reimplementation of the Reno standard, saying that while it may have been appropriate prior to the terrorist attacks of Sept. 11, the country’s ability to have such a liberal open records policy “went down in flames in New York City.”
Issa said reverting to the Reno standard would allow public access to information that “al-Qaida harvests regularly.”
Committee Chairman Henry Waxman (D-Calif.), a co-sponsor of the bill, disputed Issa’s suggestion that this FOIA reform would leave the country more vulnerable to terrorism.
“I have not heard any report that the terrorists submitted a FOIA request to help them carry out their dastardly deeds,” he said.
Waxman said the bill could go to the House floor for a full vote on Tuesday.
(H.R. 1309, Freedom of Information Act Amendments of 2007) — NW