Senate bill aims to strengthen FOI Act

• The federal Freedom of Information Act would be more user-friendly under a bill introduced by Republican and Democrat senators.

Feb. 16, 2005 — Sen. John Cornyn (R-Texas) and Sen. Patrick Leahy (D-Vt.) today introduced legislation to revamp the Freedom of Information Act for the first time since the 1996 passage of the Electronic FOI Act.

The bill would create an ombudsman office to mediate disputes between the government and FOI Act requesters; make government-owned information held by contractors subject to the FOI Act; and require data and effectiveness reports on secret exchanges of critical infrastructure information. (The Homeland Security Act prohibits disclosure to FOI requesters of information voluntarily given to the government by banks, Internet providers, water and sewer plants — anyone contributing to the nation’s “critical infrastructure.” )

The proposed ombudsman would be part of the Administrative Conference of the United States, an independent agency recently re-established by Congress to review federal administrative law issues. Under Cornyn’s and Leahy’s bill, the conference would also review FOI policies, audit agency compliance with the FOI Act, and recommend policy changes to Congress and the President.

The bill would entitle freelancers to news media fee waivers if they can show a history of publication or an intent to publish information they request. The legislation also requires agencies to include their fee decisions in their annual FOI reports to Congress.

Requesters who go to court could once again recover attorney fees and court costs in FOI cases that trigger document release, the bill says. A Supreme Court ruling on attorneys fees in a civil rights case had made recovery of FOI legal fees rare.

The bill also would require other bills introduced in congress that require secrecy to cite the FOI Act. That provision is aimed at eliminating passage of obscure secrecy measures, such as those in appropriations bills, by allowing researchers to find the measures before they are passed.

Agencies which fail to meet statutory deadlines for granting or denying requests would forfeit some ability to deny records, under the bill. The bill also would revise authority for disciplining agencies found by the courts to have been “capricious” in responding to FOI requests.

If the bill passes in its current form, FOI requests would be assigned tracking numbers so that requestors could follow their progress and anticipate decisions from agency Web sites.

The bill also requires the Office of Personnel Management to look for better FOI Act compliance within agencies and to study FOI personnel issues, including whether government employees’ adherence to the FOI Act should be part of their performance review; whether FOI officers and specialists need their own job classification series; and whether federal employees need FOI awareness training.

“This is not just a bill for the media. It is a bill for every man, woman and child in the United States of American who cares about the federal government . . . and ultimately cares about the success of our democracy,” Cornyn told Senate colleagues today.

A seasoned advocate of open government, Cornyn enforced the state open records law as Texas’ attorney general from 1999 to 2002. The U.S. attorney general sets openness policies under the federal FOI Act but has no similar enforcement role, leaving requesters to either accept illegal delays and denials or undergo expensive and time-consuming litigation.

Leahy, primary author of the Electronic FOI Act of 1996, has been the Senate’s major advocate of open government reform for decades. The bipartisan collaboration of the two Judiciary Committee senators greatly enhances chances for enactment of the bill, “Openness Promotes Effectiveness in our National Government Act of 2005.”

(S. 394) — RD

© 2005 The Reporters Committee for Freedom of the Press

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