Friends of FOIA

Many legislators who support reforms to the federal Freedom of Information Act hold leadership positions in the new Congress.

From the Winter 2007 issue of The News Media & The Law, page 4.

By Nathan Winegar

The Democratic takeover of Congress represents an excellent opportunity for passing journalism-friendly reforms to the Freedom of Information Act, according to Capitol Hill watchers.

“I think one of the major issues was the result of the election, not only the change in leadership but the sense that many folks who came out to vote in November were looking for the government to be transparent and accountable,” said Paul Boyle, senior vice president of government affairs for the Newspaper Association of America. “I think that is going to be a major theme of the Democratically controlled Congress.”

FOIA reformers are organizing their positions and meeting with staffers on Capitol Hill with the hope of having new bills ready for introduction by Sunshine Week in mid-March.

FOIA was first enacted 40 years ago under a reluctant President Lyndon Johnson, and since then it has been the subject of substantial amendments about every 10 years.

The last major changes to FOIA came in 1996, and problems faced by news media requesters since then have them clamoring for further reform.

The current optimism that some solutions to these problems can be legislatively addressed stems in large part from the open government preferences expressed by members who will assume leadership of key committees in the 110th Congress.

In the House, Henry Waxman (D-Calif.) will take over the newly renamed Committee on Oversight and Government Reform. One of his first acts as chairman was to reorganize the subcommittees, creating a new Information Policy, Census and National Archives Committee, which will focus in large part on government access issues.

In the Senate, Patrick Leahy (D-Vt.) will preside over the Judiciary Committee, putting him in a key position to shepherd through government access laws. In December, Leahy reaffirmed his commitment to FOIA reform in an address at Georgetown University Law Center, using strong language in describing the Bush administration’s record on open government.

“Unfortunately, open, informed government has been under assault by the first administration in modern times that is explicitly hostile to the public’s right to know,” Leahy said. “By using ideology to trump science, gagging government scientists and experts, reclassifying public documents and undermining important tools like FOIA, this government has displayed a dangerous disdain for the free press and the public.”

In the 109th Congress, Waxman and Leahy, with Republican support, both introduced legislation aimed at prying loose government information.

Waxman’s bill was the most ambitious in scope, but did not garner enough support in the House to make it through committee. However, some of his bill survived as an amendment to another bill sponsored by Rep. Lamar Smith (R-Texas), which was passed out of a subcommittee of the Committee on Government Reform (as it was then named).

On the Senate side, Leahy teamed with Sen. John Cornyn (R-Texas) to sponsor the OPEN Government Act, which passed out of the Senate Judiciary Committee last year.

While both bills eventually died, some of the key ideas have been thoroughly studied and could be inserted into new legislation.

Among those ideas are new rules for when requesters forced into litigation can obtain attorney fees. Also, support appears strong for additional reporting requirements so that agency FOIA performance can be more easily gauged.

Even though bipartisan support for FOIA reform exists and much of the legwork has been completed on various methods, enacting a new law is not guaranteed.

Linda Andros, legislative counsel for Citizen Watch, said a hurdle for any new legislation will be the busy calendar of investigations and other legislative priorities that the Democratic majority has mapped out for this Congress.

“On one hand you could say it has a decent chance because it is bipartisan,” Andros said. “On the other hand, there is so much else on the agenda and no one knows how things will play out.”

Tonda Rush, public policy director for the National Newspaper Association, agreed.

“Now our priority is to help our friends on the Hill see this is a priority,” she said. “Before, it was a bipartisan challenge. Now we are up against the clock.”