Bill To Increase Government Transparency Heading To President’s Desk

 

House Passes OPEN Government Bill,

Sending Long-Awaited FOIA Reforms To White House
 

 
 

WASHINGTON (Tuesday, Dec. 18, 2007) – Legislation to implement the first reforms to the Freedom of Information Act (FOIA) in more than a decade will head to the President’s desk for signature after the House of Representatives today passed important legislation to increase government transparency and bring more openness to the federal government.  The House today passed the revised Openness Promotes Effectiveness in our National Government Act (OPEN Government Act), which unanimously passed the Senate on Friday.

 

The bipartisan legislation was introduced by Sens. Patrick Leahy (D-Vt.), John Cornyn (R-Texas) and Jon Kyl (R-Ariz.), and addresses overdue and much-needed reforms to FOIA.  Leahy and Cornyn introduced similar legislation in the Senate earlier this year.  The Senate unanimously passed that bill in August, and the House had passed a similar version of the legislation earlier this year.  Earlier this month, Leahy, Cornyn and Kyl introduced revised legislation in the Senate to address “pay-go” concerns that had delayed final passage of the legislation in the House.  House Oversight and Government Reform Chairman Henry Waxman (D-Calif.) worked to shepherd the legislation quickly through the House.

 

“The American people can have a new law honoring the public’s right to know under the tree this holiday season.  I look forward to the President signing this FOIA reform legislation promptly, to make that possible,” said Leahy.  “In an era of increased government secrecy, we cannot postpone reforming the very Act that keeps our government open to the people whose government this is.  FOIA helps make government accountable and responsive to the people.  I thank Senator Cornyn for his longtime partnership on this issue, and I commend Chairman Waxman for his quick work to usher this important bill through the House.”

 

“Passage of these long-overdue open government reforms is a victory for the American people. This sweeping legislation to let more sunshine in government will be one of the signature achievements of this Congress,” Cornyn said. “Our bipartisan bill holds politicians and bureaucrats accountable in an age of ever-expanding size and scope of government. These reforms, embraced across the political spectrum, strengthen our democracy by building on the ideals America was founded upon—the people’s fundamental right to know.”

 

The enactment of FOIA reform legislation this year is an important milestone in the effort to restore openness and transparency to our government.  By sending this meaningful FOIA reform bill to the President this year, the Congress also sends a powerful message to the American people that the era of excessive government secrecy has come to an end.

 

The OPEN Government Act would:

 

• Restore meaningful deadlines for agency action under FOIA;
• Impose real consequences on federal agencies for missing FOIA’s 20-day statutory deadline;
• Clarify that FOIA applies to government records held by outside private contractors;
• Establish a FOIA hotline service for all federal agencies; and
• Create a FOIA Ombudsman to provide FOIA requestors and federal agencies with a meaningful alternative to costly litigation.

 

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Statement Of Senator Patrick Leahy,

Chairman, Senate Judiciary Committee,

On Final House Passage Of The OPEN Government Act

December 18, 2007

 

Mr. President, I am pleased that the Congress will send the “Openness Promotes Effectiveness in our National Government Act” (the “OPEN Government Act”), S. 2488, to the President for signature before the end of this year.  With House passage of this bill today, and the Senate’s passage of it last Friday, this historic, bipartisan, bicameral legislation becomes the first major reform to the Freedom of Information Act (FOIA) in more than a decade.  The American people will have a new law honoring the public’s right to know under the tree this holiday season.

 

I commend House Government Reform and Oversight Committee Chairman Henry Waxman for moving quickly to enact this bill, and for his leadership of the successful effort to pass FOIA reform legislation in the House of Representatives.  I thank him and his staff, including Anna Latin, Michelle Ash and Phil Schiliro, for all of their hard work on this legislation.  I also commend Representative William “Lacy” Clay, Jr. for sponsoring this legislation in the House.

 

I also commend the bill’s chief Republican cosponsor in the Senate, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year.

 

I am also appreciative of the efforts of Senator Jon Kyl for cosponsoring this bill and helping us to reach a compromise on this legislation this year.  I also thank the more than 115 business, news media and public interest organizations that have endorsed this legislation. 

 

Historic FOIA Reforms

 

As the first major reform to FOIA in more than a decade, the OPEN Government Act will help to reverse the troubling trends of excessive delays and lax FOIA compliance in our government and help to restore the public’s trust in their government.  

 

This legislation will also improve transparency in the Federal Government’s FOIA process by:

 

• Restoring meaningful deadlines for agency action under FOIA;
• Imposing real consequences on federal agencies for missing FOIA’s 20-day statutory deadline;
• Clarifying that FOIA applies to government records held by outside private contractors;
• Establishing a FOIA hotline service for all federal agencies; and
• Creating a FOIA Ombudsman to provide FOIA requestors and federal agencies with a meaningful alternative to costly litigation.

 

The OPEN Government Act will protect the public’s right to know, by ensuring that anyone who gathers information to inform the public, including freelance journalists and bloggers, may seek a fee waiver when they request information under FOIA. 

 

The bill ensures that federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees.  In addition, the bill also clarifies that the definition of news media, for purposes of FOIA fee waivers, includes free newspapers and individuals performing a media function who do not necessarily have a prior history of publication.

 

The bill also restores meaningful deadlines for agency action, by ensuring that the 20-day statutory clock under FOIA starts when a request is received by the appropriate component of the agency and requiring that agency FOIA offices get FOIA requests to the appropriate agency component within 10 days of the receipt of such requests.

 

The bill also clarifies that the Supreme Court’s decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598 (2001), which eliminated the “catalyst theory” for attorneys’ fees recovery under certain federal civil rights laws, does not apply to FOIA cases.

 

Furthermore, to address concerns about the growing costs of FOIA litigation, the bill also creates an Office of Government Information Services in the National Archives and creates an ombudsman to mediate agency-level FOIA disputes. 

 

In addition, the bill ensures that each federal agency appoints a Chief FOIA Officer to monitor the agency’s compliance with FOIA requests, and a FOIA Public Liaison who will be available to resolve FOIA related disputes.  And, the bill creates a better tracking system for FOIA requests to assist members of the public and clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located.

 

Finally, this bill contains a number of key improvements championed by Chairman Waxman.  The bill includes “pay/go” language that will ensure that attorneys’ fees that are awarded in FOIA litigation are paid for with annually appropriated agency funds.

 

The bill also eliminates a provision on citations to FOIA (b)(3) exemptions contained in the earlier Senate bill.  In addition, the bill includes a new provision that requires federal agencies to disclose the FOIA exemptions that they rely upon when redacting information from documents released under FOIA. 

 

And the bill adds FOIA duplication fees for non-commercial requestors, including the media, to the fee waiver penalty that will be imposed when an agency fails to meet the 20-day statutory clock under FOIA. 

 

Ending an Era of Excessive Government Secrecy

 

The enactment of FOIA reform legislation this year is an important milestone in the effort to restore openness and transparency to our government.  By sending this meaningful FOIA reform bill to the President this year, the Congress also sends a powerful message to the American people that the era of excessive government secrecy has come to an end.

 

While I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated for future generations, my work to strengthen FOIA will not end with the enactment of this legislation.

 

There is much more work to be done to ensure that we have a Government that is open and accountable to all Americans.  And I will continue to work with Senator Cornyn, Chairman Waxman and others to further strengthen this vital open government law.

 

I urge the President to promptly sign this open government legislation into law at the earliest opportunity.

 

I request that a copy of my statement be printed in the Record.

 

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For Background Purposes

 

Openness Promotes Effectiveness in our National Government Act of 2007

(“OPEN Government Act of 2007”) (Cornyn-Leahy-Kyl)

Section-by-Section Analysis

 

Sec. 1.  Short Title.  The Open Government Act of 2007.

 

Sec. 2.  Findings.  The findings reiterate the intent of Congress upon enacting the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended, and restate FOIA’s presumption in favor of disclosure.

 

Sec. 3.  Protection of Fee Status for News Media.  This section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear that independent journalists are not barred from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity.  In determining whether to grant a fee waiver, an agency shall consider the prior publication history of the requestor.  If the requestor has no prior publication history and no current affiliation with a news organization, the agency shall review the requestor’s plans for disseminating the requested material and whether those plans include distributing the material to a reasonably broad audience.

 

Sec. 4.  Recovery of Attorney Fees and Litigation Costs.  This section, the so-called Buckhannon fix, amends 5 U.S.C. 552(a)(4)(E) to clarify that a complainant has substantially prevailed in a FOIA lawsuit, and is eligible to recover attorney fees, if the complainant has obtained relief through a judicial or administrative order or if the pursuit of a claim was the catalyst for the voluntary or unilateral change in position by the opposing party.  The section responds to the Supreme Court’s ruling in Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598 (2001), which eliminated the “catalyst theory” of attorney fee recovery under certain Federal civil rights laws.  FOIA requestors have raised concerns that the holding in Buckhannon could be extended to FOIA cases.  This section preserves the “catalyst theory” in FOIA litigation.  Adds House pay/go language to require that any attorneys’ fees be paid from any annually appropriated agency funds.

 

Sec. 5.  Disciplinary Actions for Arbitrary and Capricious Rejections of Requests.  FOIA currently requires that when a court finds that agency personnel have acted arbitrarily or capriciously with respect to withholding documents, the Office of Special Counsel shall determine whether disciplinary action against the involved personnel is warranted.  See 5 U.S.C. 552(a)(4)(F).  This section of the bill amends FOIA to require the Attorney General to notify the Office of Special Counsel of any such court finding and to report the same to Congress.  It further requires the Office of Special Counsel to report annually to Congress on any actions taken by the Special Counsel to investigate cases of this type. 

 

Sec. 6.  Time Limits for Agencies to Act on Requests.  The section clarifies that the 20-day time limit on responding to a FOIA request commences on the date on which the request is first received by the appropriate agency component.  Further, the section states that if the agency fails to respond within the 20-day limit, the agency may not assess the FOIA search fees, and duplication fees in the case of non-commercial requestors, collected in connection with that FOIA request.  Also adds duplication fees for non-commercial requestors to the penalty for untimeliness.

 

Sec. 7. Individualized Tracking Numbers for Requests and Status Information.  Requires agencies to establish tracking systems by assigning a tracking number to each FOIA request; notifying a requestor of the tracking number within ten days of receiving a request; and establishing a telephone or Internet tracking system to allow requestors to easily obtain information on the status of their individual requests, including an estimated date on which the agency will complete action on the request.

 

Sec. 8.  Reporting Requirements.  This section adds to current reporting requirements by mandating disclosure of data on the 10 oldest active requests pending at each agency, including the amount of time elapsed since each request was originally filed, and requires additional breakdowns depending on the length of delay.  This section further requires agencies to calculate and report on the average response times and range of response times of FOIA requests.  (Current requirements mandate reporting on the median response time.)  Finally, this section requires reports on the number of fee status requests that are granted and denied and the average number of days for adjudicating fee status determinations by individual agencies.  The bill does not include the “Specific Citations in Exemptions” provision that was set forth in Section 8 of S. 849.

 

Sec. 9.  Openness of Agency Records Maintained by a Private Entity.  This section clarifies that agency records kept by private contractors licensed by the government to undertake recordkeeping functions remain subject to FOIA just as if those records were maintained by the relevant government agency.

 

Sec. 10.  Office of Government Services.   This section establishes an Office of Government Information Services within the National Archives and Records Administration.  Within that office will be appointed a FOIA ombudsman to review agency policies and procedures, audit agency performance, recommend policy changes, and mediate disputes between FOIA requestors and agencies.  The establishment of an ombudsman will not impact the ability of requestors to litigate FOIA claims, but rather will serve to alleviate the need for litigation whenever possible. 

 

Sec. 11.  Report on Personnel Policies Related to FOIA.  This section requires the Office of Personnel Management to examine how FOIA can be better implemented at the agency level, including an assessment of whether FOIA performance should be considered as a factor in personnel performance reviews, whether a job classification series specific to FOIA and the Privacy Act should be considered, and whether FOIA awareness training should be provided to federal employees.

 

Sec 12.  Requirement to Describe Exemptions Authorizing Deletions of Material Provided Under FOIA.  This section requires that agencies describe the FOIA exemptions that they are relying upon to redact material from information that is provided under FOIA.

 

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