1974. 1976. 1986. 1996. 2007?

A proposed overhaul of the Freedom of Information Act could mark the first major changes to the law in more than a decade.

From the Spring 2007 issue of The News Media & The Law, page 21.

By Nathan Winegar

Since the Freedom of Information Act became law in 1966, significant changes to FOIA have come at about a once-a-decade clip, with Congress conducting a census-like accounting of the law’s problems and drafting legislation to tackle them.

In the 1970s, the exemptions were being interpreted too broadly, and Congress implemented some changes over the veto of President Gerald Ford. By 1986, the rates charged to requesters had to be reined in. In 1996, FOIA needed to catch up with the information age.

Now, in 2007, Congress appears to have again diagnosed government as being due for its tetanus shot against secrecy. A reform bill that would prescribe penalties to agencies that fail to turn over public information has already passed the House of Representatives by a large, bipartisan majority, and a similar bill has been approved by the Senate Judiciary Committee.

“I’m very happy,” said Kevin Goldberg, counsel to the American Society of Newspaper Editors, who has been working with other media groups to promote the bill in Congress. “It’s the culmination of over two years of work. The bill is not only enactable, but will prove to be useful for journalists.”

While journalists will certainly benefit from the changes if the bill becomes law, some hurdles still remain before reporters can redeem the full promise held by the bill. The Bush administration, while stopping short of issuing a veto threat, has come out strongly against the legislation, and funding rules within Congress could severely limit the effectiveness of some of the major reforms advocates are seeking.

‘Pay as you go’

Some of the key provisions designed to spare requesters the cost of making and enforcing FOIA requests may be ineffective unless Congress finds the money for them.

In an attempt to negate the impact of new spending on the federal deficit, Congress has a series of rules that requires new allocations of money to be balanced with either an increase in revenue or a decrease in another area of spending.

These so-called “pay as you go” requirements could threaten the effectiveness of one of the major FOIA changes in both the House and Senate bills, an attorney fees provision that seeks to encourage agencies to turn over records early in the process.

Currently, the only way an FOIA requester can force an executive agency to turn over a record is to initiate a costly lawsuit. Sometimes an agency will withhold documents and invite such a lawsuit only to release the documents on the eve of a judge’s ruling in the case. Under current law, even though the lawsuit forced the agency to change its position, the requester would not be entitled to any attorney fees because no formal judicial ruling occurred in the case. The new law would allow requesters to recoup their legal costs if filing a lawsuit results in an agency changing course and turning over documents. A judge would assess whether the lawsuit was, in fact, the catalyst.

But because such a change would likely mean that the government will be required to spend more on FOIA requesters’ attorney fees, Congress’ pay-as-you-go rules are implicated.

In the House, this came as a last-minute surprise and prompted a crucial amendment to the legislation just before it was voted on. As it is now written, the attorney fees provision in the House bill will not go into effect until money is specifically appropriated for it. No such appropriations were introduced by early May.

Minutes before the March 14 house vote, Rep. Henry Waxman, the California Democrat who chairs the House Committee on Oversight and Government Reform, found himself on the floor explaining how these funding issues were overlooked until that point.

“I wish we had more time to bring this to everyone’s attention, but no one brought to our attention in the committee that there was concern about [pay-as-you-go rules],” said Waxman, the bill’s co-sponsor.

The funding rules may also hamper the effectiveness of another portion of the House bill designed to punish agencies that do not comply with the frequently ignored deadlines for informing requesters whether their requests will be fulfilled or denied.

Originally, the proposed law would have forbidden an agency from collecting search and duplication fees from a requester if it missed the 20-day response deadline. Now, because of the pay-as-you-go rules, the House bill allows the agency to collect fees even when it misses the deadline, but mandates that all fees be refunded at an unspecified later date.

Observers expect the Senate version to eventually mirror the House bill on these key funding issues.

Goldberg said the attorney fees provision remains a key portion of the bill, especially when coupled with the creation of a FOIA ombudsman, who will be empowered to help individual requesters solve disputes with agencies.

The ombudsman will be that much more effective at resolving disputes at the front end of the process because of the threat of paying attorney fees looming over agencies, Goldberg said.

“I think we’re moving to a place where it is becoming impossible to look at one without the other,” Goldberg said.

Administration pushback

If it makes it through Congress, the reception FOIA reform legislation will get from President George W. Bush is still unclear.

Though stopping short of issuing a formal veto threat, the Bush administration has come out strongly against the proposed changes. The White House issued a paper detailing its objections to the law, saying it was “counterproductive to the goals of increasing timeliness and improving customer service.”

The White House maintains that a 2005 executive order that mandated certain procedural rules for agencies should be given more time for implementation, calling congressional action “premature.” The White House also pointed out that many of the problems of delay within agencies are due to a lack of resources, and many portions of the House bill would punish agencies by taking away money.

“These provisions could result in slower, not faster, agency processing of FOIA requests and the personnel and funds needed to implement them would have to come from existing agency resources,” the White House statement said.

In a 12-page memo, the Department of Justice on March 26 blasted the version of the bill approved by the Senate Judiciary Committee, saying it “does not provide a workable regime for effective, efficient compliance with FOIA.”

Despite these public sentiments from the administration, Reed O’Connor, legislative counsel to Republican Sen. John Cornyn of Texas, one of the main sponsors of the Senate bill, said he does not expect any FOIA reform to be vetoed.

“I still think the prospects are good,” O’Connor said. “I think that we have good arguments in support of the provisions that are in the bill that counter the Justice Department’s views against it.”

Goldberg agreed.

“I think it would be impossible for him to veto this,” he said. “This is a bill that is clearly in the public interest.”