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Report says agencies, courts not following congressional finding

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  1. Freedom of Information
WASHINGTON, D.C.--The Reporters Committee for Freedom of the Press in early July provided a report to a House of Representatives…

WASHINGTON, D.C.–The Reporters Committee for Freedom of the Press in early July provided a report to a House of Representatives subcommittee on the failure of the federal Executive and Judicial Branches to respond to a Congressional finding intended to curb prolific overuse of the privacy exemptions to the Freedom of Information Act (Exemptions 6 and 7(C)).

The Reporters Committee stated in the report that it was unable to find a single instance of agency or court deference to Congress’ finding in the Electronic FOI Act of 1996 that the FOI Act was intended to serve “any purpose public or private,” not just government accountability interests.

According to the E-FOI Act’s legislative history, Congress intended to negate the U.S. Supreme Court’s 1989 misinterpretation of the purpose of the FOI Act. In Department of Justice v. Reporters Committee, the Court said Congress’ core purpose in passing the FOI Act had been to show “what the government was up to.”

That decision completely changed the way government agencies balance public and privacy interests to determine whether or not to invoke the privacy exemptions to the FOI Act. Following the decision, agencies stopped considering any public interest except the public’s interest in government operations and activities and the balance almost always tilts to privacy.

The Reporters Committee prepared the report at the request of Rep. Steven Horn (R-Calif.), chairman of the House Committee on Government Reform and Oversight’s subcommittee on government management, information and technology.

Horn asked for the report after hearing testimony from Jane E. Kirtley, executive director of the Reporters Committee, at a hearing in early June on the government’s progress in implementing the Electronic FOI Act.

The report shows that the usual course of the government has been to ignore the finding. However, in one case before the federal District Court in Miami, the government argued and the lower court agreed that the Congressional finding about what Congress intended was not sufficient to overcome the Court’s interpretation of what Congress intended. That case, O’Kane v. U.S. Customs Service, has been appealed to the 11th Circuit in Atlanta, Ga. (Report on Responses and Non-Response to Congress’ Finding that the FOI Act Serves ‘Any Purpose’)