Leahy, Brown introduce bill to improve FOIA

WASHINGTON, D.C. — In late November Sen. Patrick Leahy (D-Vt.) and Sen. Hank Brown (R- Colo.) introduced the Electronic Freedom of Information Improvement Act of 1993.

The bill would broaden the rights of Freedom of Information Act requesters to federal electronic records and provide incentives and penalties to help agencies meet the mandatory time limits for processing FOI requests.

Leahy introduced a slightly different bill in 1991 but it did not come to a vote before the last Congress adjourned.

The bill makes clear that requesters have rights to electronic records just as they have rights to paper records, and it allows them to choose a format for receiving the records so long as it is “reasonable” for an agency to provide the information in the requested format.

The bill defines the “search” agencies must make for responsive records to include both manual and automated searches. Federal agencies often refuse to conduct an automated search for information, claiming that if they apply a code or program to retrieve information they are “creating” records, a task not required under the FOI Act.

The bill also defines “record” to include electronic records. However, the legislators point out that there is little disagreement that the existing FOI Act covers electronic records.

Federal agencies would also have to publish an index of all information they can retrieve or that they store in electronic form. They would also publish a description of each new database.

Calling delays in agency responses to FOI requests “intolerable,” Leahy said the “American taxpayer has paid for the collection and maintenance of information and should get prompt access to it upon request.”

The bill would allow agencies substantially complying with the FOI Act’s 10- and 20-day time limits for responding to requests to keep half of the fees they collect. Currently FOI fees go to the general treasury unless a specific statute allows the agency to collect the fees for itself.

The bill also requires an agency that fails to meet time limits to pay a requester’s litigation costs, and it authorizes the assessment of financial penalties against agencies that do not comply with the time limits.

The FOI Act provides that in unusual circumstances the time limits can be extended, and courts have found that a massive backlog of cases constitutes exceptional circumstances. The bill would overturn those court decisions by specifying that routine agency backlogs do not constitute unusual circumstances for purposes of the FOI Act.

(S. 1782)