FOIA Facts: Elections and the FOIA

The results of this month's mid-term elections increase the chances that the FOIA will be amended in the next Congressional term (the 110th).

First, I do not anticipate that the current Congress (the 109th) will advance the FOIA amendments that are currently pending in both chambers. I base this opinion on a number of factors. Initially, the current Congress is only in session for a limited amount of time and the pending amendments in the two chambers are now different. This means that either the bills would have to be reconciled in conference committee with a second vote on the reconciled bill taken or the bills would have to be amended before the two chambers vote to make them identical. And as the bills have been around since almost the beginning of the 109th, amending the FOIA just doesn't seem to be a priority for GOP leadership. Finally, it has been reported that a secret hold has been placed on the Senate's version of bill (unfortunately the hold is secret, so it is difficult to say who put it there or for what reason).

However, it seems to me that amending the FOIA could very well occur in the 110th Congress for a number of reasons.

Rep. Henry Waxman (D-CA) will be the ranking member of the House Government Affairs Committee. Waxman is a strong proponent of amending the FOIA. He offered an amendment (which was approved) to the bill in the current conference that re-instituted Attorney General Reno's foreseeable harm standard in making disclosure decisions. Furthermore, amending the FOIA is low hanging fruit and ripe for action. Waxman and other Democrats will be aware of this fact and will be able to push this legislation forward in the House.

Even with the Democrats controlling the Senate, Senator John Cornyn (R-TX) will continue to be a driving force in amending the FOIA. Cornyn introduced the FOIA amendments currently in the Senate. His co-sponsor, Senator Patrick Leahy (D-VT) will be the Ranking Member of the Judiciary Committee in a Senate controlled by the Democrats. Leahy has long been an advocate of FOIA reform and was involved in the last amendments to the FOIA. Leahy will very likely now be in a position to usher changes in the FOIA that he hasn't been in for a very long time. The pairing of Corwyn and Leahy will make FOIA legislation a bipartisan matter, which should make getting it through the 110th Congress much easier.

Finally, changes at the Department of Justice may also be a factor in FOIA amendments. For the past two decades, the Office of Information and Privacy, which was the Executive branch's FOIA policy office, has been led by Richard Huff and Dan Metcalfe. Huff retired last year and Metcalfe announced that he will step down in early 2007. They were both involved at length in the last amendments to the FOIA during the Clinton administration. They will not be in the government during the next Congress. It is unclear how this will affect the Department of Justice's views on proposed FOIA amendments, but there will be an effect either way. Furthermore, it is not clear who will voice Department of Justice opinions on proposed amendments in the future. This void and the changes that come with it will add an interesting twist to any pending FOIA legislation.

Thus, the FOIA landscape, like the political landscape, will be changing in the coming year. What it ends up looking like is an open question that won't be answered for sometime. And as always, I'll continue to update these changes in my foia blog.