Senate Approves FOIA Bill; Leahy Makes Slight Change

8 December 2014

The US Senate Dec. 8 unanimously approved amendments to the freedom of information act, with a slight, time-limited concession to the lone senator who had withheld his support.

Negotiations with Sen. Jay Rockefeller (D-W. Va.) resulted in “report language” – a non-binding, but influential description of Congress’s intent.

Rockefeller had objected to a key provision in the bill, one that would require agencies to release information unless “foreseeable harm” would result.

The compromise language in the committee report says:

It is the intent of Congress that agency decisions to withhold information relating to current law enforcement actions under the foreseeable harm standard be subject to judicial review for abuse of discretion.

Rockefeller had predicted that the foreseeable harm standard would create an “unintended consequence” of impairing enforcement of federal laws protecting consumers.

His position was that corporate defendants “could inundate” agencies with requests and would generate “needless litigation” that would drain agency resources and chill internal agency deliberations, according to Rockefeller’s view.

In a statement issued after the vote, Rockefeller said:

While the Senator retains some concerns with the bill, they have been addressed by report language that establishes Congressional intent that courts should take into consideration the concerns of agencies when they withhold information related to law enforcement efforts.

He further said:

The Judiciary Committee also agreed to a colloquy, based on Rockefeller’s concerns, which aims to make it clear that Congress places high value on law enforcement personnel’s continued ability to internally exchange ideas and legal strategies.

The language was worked out during negotiations Dec. 8.

The Senate-approved bill still must be approved by the House, but congressional sources do not expect any impediments to arise.

Other Provisions

The bill makes a variety of other changes intended to enhance government transparency.

The bill would enhance and expand the role of the Office of Government Information Services (OGIS). Agencies would be required to notify requesters of the right to seek dispute resolution services from OGIS or the agency’s FOIA public liaison.

Another provision would make the deliberative process exemption inapplicable to records older that 25 years.

The “FOIA Improvement Act” also would require the public posting of documents that have been released under FOIA on three or more occasions.

There’s a prohibition on charging fees when the handling of a request is delayed, except for very large requests, more than 50,000 responsive records.

The bill calls soft a variety of reports on FOIA implementation, such as on backlog reduction methods.

The Government Accountability Office would be required to conduct audits of the FOIA activities of three or more agencies every two years.

Another  requirement would mandate t the Office of Management and Budget to “ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records under subsection (a) to any agency from a single website.

Creation of a Chief FOIA Officer Council would be mandated.

Federal agencies would need to provide data needed to understand the frequency of the use of exemptions.



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