FOIA reform 2007

Open government acts in limbo

From the Fall 2007 issue of The News Media & The Law, page 29.

By Loren Cochran

Reform legislation aimed at improving the efficiency and effectiveness of the Freedom of Information Act is beginning to look a lot like many FOIA requests: it sits in a queue waiting for official government action.

Two versions of FOIA process-improvement bills, one from the House and one from the Senate, have passed one chamber of Congress and now await action by the other side.

What form that action will take or when it might occur is unknown, seemingly even to those who hold the fate of the proposed FOIA overhaul in their voting futures.

The House passed its bill, H.R. 1309, on March 14 with a comfortable margin of 308-117.

Senate bill 849, powered by the strong bipartisan duo of Sen. Patrick Leahy (D-Vt.) and Sen. John Cornyn (R-Texas), passed in the Senate by unanimous consent on Aug. 3.

Since August, both bills have sat in a state of suspended animation waiting for their next respective incarnation.

Rick Blum, coordinator for the Sunshine in Government Initiative, a coalition of media groups including The Reporters Committee for Freedom of the Press that has advocated for FOIA reform, said there is no clear indication what will happen next in the legislative process.

“While the bill is incredibly close to being enacted, it’s completely unclear how or whether Congress will get the bill to the president’s desk this year or next,” Blum said.

Procedurally, the process of getting an identical bill through both the House and the Senate and on to the White House would come from one chamber adopting the other’s version of the bill, through a conference committee, or through an entirely new bill.

Blum said that both bills are a strong step in the right direction toward improving the process of obtaining public records from the federal government. Both the House and the Senate versions create a federal ombudsman position for information requesters to contact with questions about the FOIA process and as a possible intervener when requests are denied. In addition, each allows for the recovery of legal fees if a requester must sue for records that have been wrongfully denied by the government. Finally, both bills have improved agency reporting requirements that would allow those interested the ability to monitor the effectiveness of the FOIA process, according to Blum.

“These were our highest priorities,” Blum said.

However, multiple sources familiar with current legislative discussions between lawmakers from both the House and the Senate say a few sticking points in each bill have caused the stall.

House rules require that a bill pays for itself. This is known as the pay-as-you-go rule, or “PAYGO.” For this reason, the House bill includes a provision that would take money directly from an agency’s yearly budget to pay for a requester’s attorney fees when awarded by a court in a FOIA lawsuit. House members say they are unable to adopt the Senate’s bill because PAYGO language is absent. 

Backers of the House version also say that the failure of the Senate bill to reintroduce a presumption in favor of disclosure by reversing a controversial memorandum by former-Attorney General John Ashcroft is another issue preventing further progress on the legislation.

The biggest problem for many advocates of reform, though, is a change in statutory language in the Senate version of the bill that some fear would make it easier for lawmakers and agencies to exempt future legislation from the disclosure requirements of FOIA.

Exemption 3 of the existing statute states that the Freedom of Information Act does not apply to matters specifically exempted from disclosure by another statute. However, in order to exempt itself from the FOIA, the other statute must establish “particular criteria for withholding” information. The Senate version of the bill drops the criteria language, and instead requires that new legislation specifically state its exemption from the Freedom of Information Act. The differences in this language are at the heart of the standstill.

“This little provision threw a monkey wrench into it,” said Michael Ostrolenk, national director of the civil libertarian group the Liberty Coalition. Ostrolenk said he fears the change in language of Exemption 3 could make the reform legislation less desirable than the act as currently written. For him, that might be reason enough to seek an entirely new bill.

“I’d rather personally see it not pass and start from scratch then pass it and have to fix it later,” Ostrolenk said.

But Blum thinks the new language could be a chance to fix a much bigger problem in the FOIA. He says that few see the criteria of Exemption 3 as effective because for years federal agencies have learned how to craft legislation that meets the law’s current “criteria” standards and yet gives the agency very broad discretion to withhold information.

“No one should interpret that (the criteria langugage was dropped) as a message that Congress wants to give agencies more discretion in the future,” Blum said. “Just the opposite is true.”

Even if a single bill passes both chambers of Congress and reaches the White House, it is unknown how the president would respond. In March, when the House version passed, the White House issued a statement saying that the administration “cannot support” the FOIA reform legislation. But unlike several other bills making their way through Congress around the same time, no direct threat was made that the bill would be vetoed.

Ostrolenk said it makes sense for politicians to work together now, iron out the differences and get the measure passed this year, before election campaigns kick into high gear. 

“This seems like a pretty easy thing to get behind them,” he said. “Not necessarily something everyone likes, but at least they can say ‘We fixed FOIA.’”