US House Approves Bill to Improve FOIA Operations

28 February 2014

The US House Feb. 25 voted 410-0 to pass a bill (H.R. 1211) intended to improve the operation of the Freedom of Information Act.

No similar bill exists in the Senate, but the Senate Judiciary Committee is planning to hold a hearing on FOIA on March 11. FOIA advocates are hoping that a Senate bill will deal not only with process issues, but also make more fundamental changes regarding exemptions that are considered too restrictive.

The House FOIA Oversight and Implementation Act would:

–          require the Office of Management and Budget to establish a three year pilot program to study creation of a central portal for FOIA submissions. The bill was revised to drop a reference to an existing site developed and operated by the Environmental Protection Agency and used by a handful of agencies, FOIAOnline.

–          strengthen the role of the Office of Government Information Services, an ombudsman-like body, by enhancing its role in providing guidance to agencies, and ensuring that agencies notify requesters of their right to use its mediation services. OGIS would be required to review agency regulation updates. OGIS is told to send its reports directly to Congress.

–          codify a presidential memorandum on FOIA signed by President Barack Obama early in his first term saying: ‘‘An agency may not withhold information under this subsection unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.’’

–          require agencies to post online any document that is requested more than three times through FOIA.

–          require the Inspector General of each federal agency to periodically review compliance with FOIA disclosure requirements and make recommendations.

–          require agencies to make information public “to the greatest extent possible through modern technology.”

–          require the US Archivist to establish an Open Government Advisory Committee to make recommendations for improving Government transparency. The Obama administration is already forming a similar panel.

–          require each agency to update its FOIA regulations “not later than 180 days after the enactment of this Act.”

The bill, sponsored by House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.), was approved by the committee last March.

No similar bill exists in the Senate, and the Senate Judiciary Committee has passed legislation (S.627S. 1466), known as the Faster FOIA Act, three times since 2005 without it becoming law, as recalled by Nate Jones of the National Security Archive in the blog Unredacted.

A coalition of groups, including the Sunlight Foundation, the Center for Effective Government and the National Security Archive, endorsed the bill in a letter saying in part, “The FOIA has yet to become an effective and efficient tool for the public to access government information, and the experience of the past few years makes clear the need for reform to ensure the law is implemented as Congress intended,” the letter stated.

The groups urged additional reforms concerning FOIA exemptions:  “We look forward to working with the Senate Judiciary Committee to advance legislation with additional reforms, including provisions to curb the overuse and abuse of certain exemptions—particularly Exemption 3 and Exemption 5.”

Exemption 3 concerns information that is prohibited from disclosure by another federal law. There are some 170 such prohibitions and reformers would like to see a public interest test applied. Exemption 5 regards various forms of communication within or between agencies, including the protection of the “deliberative process.” Ideas for reform include adding a harm test.

“At a minimum, the application of Exemption 5 should be narrowed to promote greater transparency and be subject to the same time limits as the President’s records, and a public interest balancing test should be used when applying Exemption 3,” the letter said. The Presidential Records Act limits withholding the highest levels of deliberations to 12 years.

Senate Hearing Witness List Issued

Testifying at the March hearing will be:

Melanie Pustay, Director, Office of Information Policy, Department of Justice

Miriam Nisbet, Director, Office of Government Information Services, National Archives and Records Administration

Amy Bennett, Assistant Director, OpenTheGovernment.org

David Cuillier, Director, Associate Professor, University of Arizona School of Journalism, and President, Society for Professional Journalists

Daniel J. Metcalfe, Adjunct Professor of Law and Executive Director, Collaboration on Government Secrecy, American University Washington College of Law

 [In the link provided above to Thomas, the official source of House information, the text of the bill as passed is accurate, but the summary of the bill provided is outdated. – Ed.]

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