FOIA Facts: FOIA - The Year in Review

It’s been an interesting year for government disclosure laws. There has been much talk of new laws and initiatives to make these laws friendlier to the public. But, as of the writing of this article, not much has actually happened.

At the federal level, for the second straight year, amendments to the FOIA were introduced in both branches of Congress. Unlike 2006, both houses actually passed the bills.

[Editor's note: press release, December 14, 2007: “The Senate Friday unanimously passed revised legislation to improve and strengthen the Freedom of Information Act – the law that protects the public’s right to know what their government is doing. The Openness Promotes Effectiveness in our National (OPEN) Government Act was reintroduced by Sens. Patrick Leahy (D-Vt.), John Cornyn (R-Texas), and Jon Kyl (R-Ariz.) and passed by the Senate.]

However, the bills sit in committee awaiting reconciliation and fixes to various minor problems with both bills. It has been reported that the major current roadblock is the cost of the bills, which aren’t covered by the legislation and violate House pay as you go rules [Editor's note - see Understanding PAYGO: Questions and Answers]. On December 4, 2007, a second bill was introduced in the Senate which attempted to fix this problem.

I, for one, have gone on the record stating that I would wait until 2009 to pass a better bill than the ones currently pending. I don’t think that a Congress in 13 months will take up FOIA reform if the pending bills pass, no matter how much more reform is still needed to the FOIA.

At the Executive branch level, the FOIA Operation improvements mandated by Executive Order 13392 continue. However, backlogs at agencies continue to increase in many cases. And the problem of adequately funding FOIA Offices, problem agency FOIA staffs are keenly aware of, but Congress and high level agency officials seem to be perpetually unaware of continues.

The Department of Justice had a changing of the guard for the first time in many years in FOIA policy positions. In the spring, Melanie Pustay became acting and then permanent Director of the Office of Information and Privacy. DOJ then reversed its 2005 decision taking FOIA policy powers away from OIP. It is still too early to see what effect Melanie will have on FOIA policy.

While Courts continued to issue large amounts of FOIA decisions, no real landmark decisions came down in 2007. District Courts continue to grapple with higher court decisions in areas of classification (Exemption 1), Confidential Business Information (Exemption 4) and threshold requirements for Exemption 5.

The states continue to be a laboratory of disclosure. Tennessee added an ombudsman's office for public record disputes and Pennsylvania struggled with overhauling its anti-requester Right-to-Know law. At the state level, e-mail retention and disclosure seemed to be the hot topic. This is an issue which will likely continue for a number of years.

[Editor's note: S. 2488, the Openness Promotes Effectiveness in our National Government Act of 2007, become law on December 31, 2007, with the signature of President Bush.]