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FOIA Facts: FOIA Legislation Update

By Scott A. Hodes, Published on October 15, 2006

Amendments to the FOIA pending in Congress since the Spring of 2005 may not be completely dead. Both the Senate and the House of Representatives moved along FOIA legislation before breaking for the mid-term elections in late September. While the chances of FOIA legislation passing this year are slim, it may still happen. It should be recalled that the last time FOIA legislation passed, it was done at the last minute, not in the middle of a term.

The Senate has before it The Open Government Act of 2005 which is sponsored by Senator John Cornyn (R-TX) and Senator Russ Feingold (D-WI). This bill was approved by the Senate Judiciary Committee on September 21, 2006. The bill would, among other things, give agencies 20 working days to decide whether or not to release the requested documents and make the government provide a database for requesters to track their FOIA requests. The bill now awaits a vote before the full Senate. I wrote about the Senate's bill when it was introduced in early 2005.

The House version of the bill is still in committee, however before going on break, the House Government Reform Subcommittee on Government Management, Finance and Accountability approved a version of the bill. The amended FOIA legislation now awaits passage by the whole committee. The bill is different than that before the Senate because it includes an amendment by Rep. Henry Waxman (D. CA.) that would roll back FOIA policies implemented by then Attorney General Ashcroft in 2001 and still in place today. Namely, the Waxman amendment would require the government to re-instate the policy of former Attorney General Janet Reno that called up agencies to make discretionary disclosures of information when the release of the information, which could arguably be withheld pursuant to the FOIA, would cause no foreseeable harm to the government. Former AG Ashcroft implemented his own policy in 2001 that basically allows the government to withhold anything that it can argue fits within one of the nine FOIA exemptions.

Only a few more days of Congressional sessions will be held in 2006, so it is doubtful either the Senate or House version of the FOIA bill will be passed this session. However, if both bills are slipped into other legislation (for instance many agency budgets have still not been acted on for FY 2007), there is still a glimmer of hope that the FOIA will be amended and improved for requesters this year.

For all the latest on the legislation (and all other FOIA news), please read my blog.