New draft of electronic FOI bill would strengthen rights to more government records

WASHINGTON, D.C. — Congressional staffers from the Senate Judiciary’s Subcommittee on Technology and the Law in early June began circulating a new draft of the Electronic Freedom of Information Improvement Act. It makes clear that the FOI Act gives requesters strong access rights to all government records, not just those that directly concern the government.

Sen. Patrick Leahy (D-Vt.) and Sen. Hank Brown (R-Colo.) introduced the electronic FOI bill in late November. Congress adjourned before an earlier, similar bill introduced in 1991 came to a vote.

Although the main thrust of the bill would be to give FOI requesters clear rights to electronic records, adoption of the new language would significantly strengthen requesters’ rights to other government records as well.

In 1989 the U.S. Supreme Court said in U.S. Department of Justice v. Reporters Committee that the “core purpose” of the FOI Act was to shed light on government operations and activities.

In rejecting a reporter’s request for the criminal history records of a defense contractor who had close ties to a corrupt congressman, Justice John Paul Stevens said the contractor’s privacy interests outweighed the public’s interest in disclosure. The FOI Act only serves the public’s interest in knowing what the government “is up to,” he wrote.

Since that ruling, whenever the government’s FOI decisions have involved balancing public and private interests, or granting fee waivers to serve the public’s interest, it has generally refused to consider any other public interest that might be served by disclosure.

The new draft also gives agencies 20 days to grant or deny agency requests. The current act gives them 10 days. The draft also deletes a provision in the bill now before the Senate that allows courts to award requesters $75 a day from agencies which delay their responses.

The draft would require agencies to process requests on a first-in, first-out basis and would limit expedited review by agencies to situations of “compelling need.” Reporters could get expedited review only if “widespread, contemporaneous” media coverage already exists for the “actual or alleged governmental actions” addressed by the records.

(S. 1782)