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FOIA Facts: New FOIA Legislation Introduced

By Scott A. Hodes, Published on March 13, 2005

Senators John Corwyn (R-TX) and Patrick Leahy (D-VT) have co-sponsored a bill amending the FOIA.  A counterpart bill has also been introduced in the House by Lamar Smith (R-TX).

[Editor's note: on March 15, 2005, the Committee on the Judiciary Subcommittee on Terrorism, Technology and Homeland Security held a hearing on this bill, S. 589.  On March 17, 2005 the bill was approved by the committee and sent to the full Senate for a vote. Continued updates on this legislation are available on beSpacific.com]

The bill attempts to cut down agency backlog times by disallowing agencies to utilize certain FOIA exemptions when they fail to respond to requests within the statutorily mandated response time. The bill also expands the definition of media so that internet journalists and bloggers can fit within the definition, and therefore be eligible for fee waivers.

Another aspect of the bill is the creation of a FOIA omsbudsman which would act as an arbiter to mediate disputes between FOIA requesters and agencies. The bill also requires the government to set up a central database that would allow requesters to track their requests as they meander through the FOIA process. Finally, the bill allows for the recovery of attorney fees where the bringing of a lawsuit is the catalyst for getting the requested information. Current law now requires that plaintiff’s only recover attorney fees where there is a decision in the case granting them access to the requested records.

While I like all of the provisions of the proposed bill, I do not expect any of these proposals to become law. The basic reason is money. Even if every member of both houses of Congress are ardent supporters of FOIA, the cost of this bill in the age of outrageous budget deficits, makes passage difficult. The easiest way to alleviate FOIA backlogs is to fully fund and staff FOIA offices. This has never been done, with some agencies even downsizing their FOIA staffs.

All of these provisions cost money. Some of the money would be somewhat definite, such as the setting up of a database or funding an office to act as FOIA ombsbudsman. However, costs of other provisions are very speculative. For instance, disallowing the use of certain FOIA exemptions would cause a huge increase in FOIA litigations, as agencies would always claim that their failure to respond to the request was within the exceptions to the rule allowed by the amendment. Costs of litigation are incurred by agencies general counsel offices and the Department of Justice, who litigations these cases for agencies. Additionally, the fee waiver and attorney fees changes would also cause in immeasurable increase in costs.

While some of the amendments could be budget neutral by changing around some of the existing FOIA bureaucracy, it is unlikely agencies would willingly agree to any changes from the status quo. Further, the one thing government personnel fear is change, which would obviously come from this bill. While I’d like to see the FOIA amended to get more information to requesters quickly, it is unlikely it will happen soon.