From the Spring 2005 issue of The News Media & The Law, page 6.
An ombudsman in an Office of Government Services would mediate disputes between the government and FOI Act requesters. He or she would be part of the Administrative Conference of the United States, an independent agency that Congress recently re-established after a nine-year hiatus. Though re-authorized, no money has yet been appropriated for the conference. The ombudsman also would review and recommend changes to agency FOI policies, and audit agency performance on open records compliance.
Unlike previous FOI ombudsman proposals, the Cornyn-Leahy bill would not eliminate requesters’ right to litigate. Instead it would promise to “alleviate the need for litigation,” wherever possible.
The Office of Personnel Management would study whether FOI Act compliance should be included in federal personnel evaluations and whether a job description for FOI officers and specialists should be created. This provision of the bill also calls on OPM to consider FOI Act training for federal workers.
• Time Limits
The most controversial part of the bill would prohibit an agency from using FOI Act exemptions if it does not respond to a request within the 20-day time limit. That prohibition would not apply if disclosure could endanger national security or violate the Privacy Act. The section, modeled on the Texas public records law, also would allow an agency to demonstrate by “clear and convincing” evidence that it had good cause to miss the statutory deadline.
When a court finds federal workers “acted arbitrarily or capriciously” in withholding documents under the FOI Act, the attorney general would have to report the finding to the Office of Special Counsel and Congress. The special counsel’s office, which under current law may — but virtually never does — determine that disciplinary action is needed, would have to report to Congress on any action it takes on such cases.
• Attorney Fees
Successful FOI Act litigants could have their attorney fees paid by the government if their litigation led to document disclosure regardless of whether there was a judicial or administrative order. The section is called the Buckhannon fix, a reference to a 2001 U.S. Supreme Court ruling that curtailed attorney fee awards in federal civil rights law, which has been interpreted to apply to the FOI Act. (See related story, page 10.)
• Freelancer Fees
The law would clarify that independent journalists would not be barred from obtaining news media fee waivers solely because they are not affiliated with an recognized news organization. The waivers could apply to them if they plan to disseminate information to a reasonably broad audience.
Federal agencies would have to beef up regular FOI Act reports they make to Congress by reporting on the average time and range of response times for FOI Act requests, on the status of the 10 oldest pending requests, and on fees they have charged.
Agencies would assign tracking numbers to FOI Act requests allowing requesters to quickly determine by telephone or Internet the status of their request and how quickly they can anticipate a response. This section mirrors requirements in Mexico’s new federal open records act.
When private contractors keep agency records, those records would be subject to the FOI Act as they would be if maintained in a federal agency.
• Critical Infrastructure Information
Data and effectiveness reports on secret exchanges of “critical infrastructure information” — information voluntarily given to the government by banks, Internet providers, water and sewer plants, and anyone contributing to the nation’s critical infrastructure — would be required. The Homeland Security Act prohibits disclosure of such information that has been submitted to the Department of Homeland Security to FOI Act requesters. The nation’s comptroller general would be responsible for the report, which must also include information on whether the nondisclosure of CII material has actually increased the protection of the infrastructure.
• Confidentiality Laws
A bill that would require any information to be held as confidential would be required to cite 5 U.S.C. 552(b)(3) — the section of the FOI Act that exempts from disclosure information made secret by other laws. The citation would alert Congress to the intent to create new secrets before they are law. This section is designed to prevent members of Congress from quickly and quietly slipping provisions into unrelated bills that would create secret government information.plain