U.S. Senate Passes Sweeping FOIA Reforms

The U.S. Senate has unanimously passed a bill to reform the Freedom of Information Act (FOIA), which marks the first significant update to FOIA in more than a decade. The bill, if signed into law, would make it easier for records requestors to recover legal fees when they are forced to sue for documents. The reforms also would detail sanctions for agencies who fail to timely respond to FOIA requests, create an ombudsman’s office to mediate disputes between requestors and agencies, treat freelance journalists – including bloggers – as members of the media when they ask for reduced fees, and establish a system to make it easier to track FOIA requests.

The bipartisan bill, dubbed the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), was introduced by Senators Patrick Leahy (D-Vt.) and John Cornyn (R-Texas). When introducing the bill, Senator Leahy promised the measure would promote accessibility, accountability and openness in the government through “commonsense reforms.” The bipartisan sponsors described problems with the current FOIA process, including major delays, problems keeping up with the demand requests, and the federal government’s increasing “obsession with secrecy.” As an example, Senator Leahy noted that some current FOIA requests date back to 1989, before the collapse of the Soviet Union.

The Senate Judiciary Committee had originally approved the OPEN Government Act in April 2007, but Senator Jon Kyl (R-Ariz.) cited concerns raised by the Department of Justice and blocked the bill from a full Senate vote. Senators Leahy and Cornyn eventually reached a compromise with Senator Kyl, which included amendments that, among other things, narrowed the bill’s original definition of requestors entitled to reduced fees or fee waivers. Also, under current FOIA, an agency can avoid paying legal fees if it provides the records after the litigation is filed but before a judge forces the disclosure. The original bill approved by the Senate Judiciary Committee allowed requestors to recoup fees where a lawsuit prompted “a voluntary or unilateral change in position” by a government agency, if the requestor’s complaint was “not frivolous.” Under the amended bill, approved by the entire Senate on August 3, requestors have a slightly higher standard; the amended language now reads “not insubstantial,” instead of “not frivolous.”

If signed into law, the bill also would improve transparency in the federal government’s FOIA process by:

• imposing consequences on federal agencies for missing FOIA’s 20-day statutory deadline
• clarifying that FOIA applies to government records held by outside private contractors
• limiting government agencies’ ability to charge some fees for untimely responses to requests
• establishing a FOIA hotline service for all federal agencies
• creating a FOIA ombudsman to provide requestors and federal agencies with an alternative to costly litigation.

The House of Representatives passed a similar bill in March 2007, by a margin of 308-117. The differences between the two bills must now be reconciled. After Congress concludes its conference, the bill will be passed on to President Bush. After the House passed its original bill, the President issued a statement expressing opposition to the bill, but he has not yet threatened a veto.

For more information, email Trisha M. Rich at Trisha.Rich@hklaw.com or call toll free, 1.888.688.8500.