Senate passes FOIA reform bill

Aug. 6, 2007  ·   The Senate unanimously passed a bill Friday that would reform the federal Freedom of Information Act by making it easier for records requesters to recoup legal fees when forced to sue to receive documents.

The bill also specifies sanctions for agencies that fail to respond to FOIA requests in the required timeline and create an ombudsman to mediate disputes between records requesters and agencies.

The House passed a similar bill by a veto-proof 308-117 margin in March.

In April, the Senate Judiciary Committee approved the OPEN Government Act, sponsored by Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Texas). But Sen. Jon Kyl (R-Ariz.) used a secret hold to block the bill from going to a full Senate vote, citing the Justice Department’s concerns about the bill.

The bill as passed by the Senate on Friday includes amendments proposed by Kyl that would, among other things, narrow the bill’s original definition of news media requesters who are eligible for certain fee waivers. However, the bill still makes clear that many nontraditional entities that use requests to disseminate public information still should benefit from the lower fees.

The final Senate bill adopts a definition of news media established by the federal appeals court in Washington, D.C., in a 1989 case involving the National Security Archive, a private research organization based at The George Washington University.

“By codifying it, it will be in the law, it won’t be changed by the courts and it will apply in all the circuits,” said Kristin Adair, staff counsel for the National Security Archive. “It’s very important to organizations like ours that do journalistic work with documents obtained under FOIA.”

The proposed law also would allow FOIA requesters who are forced to sue to gain access to documents to receive attorney fees from agencies when the government turns over documents after a lawsuit is filed but before a court formally rules against the agency. Now, even though such a lawsuit may prompt the release of documents, the requester cannot recoup legal fees, in large part because of a 2001 U.S. Supreme Court decision that has been applied to FOIA cases.

The bill approved by the Senate committee would have allowed a requester to collect attorney fees if a lawsuit prompted “a voluntary or unilateral change in position” by the government if her complaint was “not frivolous.” The amended bill changes that to “not insubstantial.”

That should be only a “slightly higher” standard than the language in the original version but one that should still allow journalists to more frequently recoup their court costs, said Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition of media groups that includes The Reporters Committee for Freedom of the Press.

“This is a win,” he said. “It’s going to be a lot easier to recover legal fees from agencies.”

Additionally, the bill would limit the ability of government agencies to charge fees if they do not respond to requests in time. The bill says agencies have 10 days to forward a request to the proper part of the agency, then 20 days to reply to the request. After that, the agency would forfeit the right to charge search fees to the requester.

Blum said this should alleviate one of the major headaches of dealing with FOIA, in which requests are never formally approved or denied but are perpetually shuffled around an agency.

“Sometimes it would take years for an agency to say, ‘Oh, we’re still waiting to get it to the right component,'” Blum said. “This makes it clear an agency has 10 days.”

The differences between the House and Senate versions now must be reconciled before going on to the president. After the House passed its bill, President Bush issued a statement expressing his opposition but stopped short of a formal veto threat.

(S. 849, Openness Promotes Effectiveness in our National Government Act) — RG

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