U.S. Congress Passes Freedom of Information Act Reform Bill

6 August 2007

The United States Senate Friday joined the House of Representatives in passing bipartisan legislation that will fix several of the most glaring problems with the U.S. Freedom of Information Act. The OPEN Government Act of 2007, authored by Senator Patrick Leahy (D-VT) and Senator John Cornyn (R-TX), overcame a hold placed by Senator Jon Kyl (R-Az) on behalf of the U.S. Department of Justice. It passed late Friday evening by unanimous consent on the last day of the Congressional session before the August recess.

After a conference to reconcile provisions between the House and Senate versions, the new law will implement several important reforms to the 41-year-old Freedom of Information Act. In particular, the bill will create new incentives for agencies to process FOIA requests in a timely manner and to avoid litigation. For the first time, federal agencies in the United States will be subject to a penalty if they delay in complying with FOIA requests: if the agency fails to respond to a request within the 20-day time period set forth in the statute, the agency will not be permitted to collect processing fees for that particular request.

Also under the new language, a requester can obtain attorneys’ fees when he or she is forced to file a lawsuit to make the government to release records, even when the government provides the records before the court orders them to do so. However, this provision would not allow the requester to recover attorneys’ fees if the requester’s claim lacks merit.

The amendments also mandate several specific improvements to agency processing of FOIA requests, including requiring agencies to assign tracking numbers for FOIA requests that take longer than 10 days to process so they will no longer fall through the cracks. In addition, agencies will have to report more accurately to Congress on their FOIA programs.

Finally, the U.S. FOIA process will now look more like that of Mexico and other countries that provide individuals with an alternative to litigation in the event of disputes with government agencies over information requests. The OPEN Government Act will create a new ombuds office at the National Archives and Records Administration (to be named the Office of Government Information Services) to mediate conflicts between agencies and requesters and review FOIA compliance at all federal agencies.

“These are commonsense reforms that will finally force agencies to fix egregious backlogs and reporting problems,” said National Security Archive staff counsel Kristin Adair. “But, remarkably, it took several congressional terms to get these straightforward adjustments into the law, with obstruction from the executive branch all along the way, including, ironically, a secret hold by a Senator acting at the behest of the Department of Justice.”

Similar legislation passed the U.S. House of Representatives overwhelmingly during Sunshine Week in March 2007, but progress on the Senate bill has been halted for months by a hold placed by Senator Kyl on behalf of the Department of Justice. Despite strong opposition by the Department of Justice, the OPEN Government Act of 2007 was supported by more than 115 organizations, including public interest and media groups as well as business and political organizations spanning the political spectrum. After multiple editorials, including several in Senator Kyl’s homestate Arizona Republic, assailed Kyl’s position and nicknamed him “the Secrecy Senator,” Kyl’s staff negotiated new compromise language and finally allowed the bill to come up for a vote in the Senate.

“This is a small step for open government, but a giant leap for the United States Senate,” said Tom Blanton, director of the National Security Archive. “We applaud Congress’ action to fulfill the intent of the Freedom of Information Act. This legislation will correct many of the deficiencies in FOIA that the Archive’s audits have revealed.”

Part of the impetus for these important FOIA reforms was several audits of federal government FOIA practice, conducted by the National Security Archive and supported by the John S. and James L. Knight Foundation. The most recent Knight Open Government Survey report, released by the Archive in July 2007, found that the oldest still-pending FOIA requests had languished in federal agencies for as long as 20 years. The previous Knight Open Government Survey, released in March 2007, found that only one out of five federal agencies had complied fully with the last FOIA reform legislation, the Electronic FOIA Amendments passed in 1996, intended to post so much government information on the Web that many FOIA requests would become unnecessary.

Documents

Congressional Record S10986-S10991, August 3, 2007 – Consideration and passage of S. 849, the OPEN Government Act of 2007

Text of the OPEN Government Act as reported by the Judiciary Committee, April 2007

Kyl-Leahy Amendment to Leahy-Cornyn OPEN Government Act (agreed August 3, 2007)

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