AAN Supports FOIA Reform Legislation Moving Forward in Congress

Chances are you have used the federal Freedom of Information Act (FOIA) at some point in your reporting. Or at least attempted to…

While ripe with promise and wonderful in theory, FOIA often lets reporters down in practice. Whether its untenable delays that make meeting a desired deadline impossible or agencies invoking exemptions that clearly aren’t applicable, using FOIA can be a frustrating experience.

That’s why AAN supports legislation designed to improve your FOIA experience. AAN joined dozens of other open government advocates on a letter asking every member of the House of Representatives to pass the HR 1211, the FOIA Reform Act. We’re happy to note that the House did just that – passing it by a unanimous vote on Tuesday, February 25.

The first attempt at major FOIA reform since the Open Government Act of 2007 was enacted on December 31, 2007, HR 1211 would effect many changes to the law, including:

  • Facilitating the creation of a single, uniform, “FOIA Portal” that would make proactive disclosure of information easier and would also make it easier to submit and track requests online;

  • Codifying the current standard by which the DOJ defends FOIA denials in court the so-called “foreseeable harm” standard that, in theory, allows for more discretionary disclosure of information even where a FOIA exemption applies (a standard which, even though we’re not sure it’s being honored in full by the Obama Administration/Holder DOJ, could be cut back when we have a new President/AG);

  • Making the Office of Government Information Services (OGIS aka the “FOIA Ombudsman”) stronger and more independent;

  • Speeding up the Administrative Appeals process (the process of appealing an adverse decision within an agency);

  • Requiring agencies to document additional search or duplication fees before imposing them on requesters;

  • Requiring agencies to submit annual FOIA reports to the Director of the Office of Government Information Services, in addition to the Attorney General to allow for better oversight of the government’s FOIA activities;

  • Expanding the duties of the Chief FOIA Officer of each agency to require an annual compliance review of FOIA requirements;

  • Formally establishing a the Chief FOIA Officers Council to develop recommendations for increasing compliance with FOIA requirements;

  • Formally requiring each agency to update its FOIA regulations within 180 days of the enactment of this Act.

  • Requiring the Inspector General of each federal agency to get more involved in oversight and making recommendations to heads of agencies;

  • Creating a disciplinary action for improper withholding of information under FOIA.

So what happens now? The bill moves to the Senate, which can choose to use this as a starting point for its own efforts to draft its own bill. Either way, the Senate Judiciary Committee seems ready to begin that process, as it will be having a FOIA oversight hearing on March 11 which could lead to legislative activity. This hearing, of course, comes just in advance of Sunshine Week, a national effort designed to highlight open government at the federal, state and local level which runs from March 16-22.

We hope that AAN members will participate in Sunshine Week. We certainly hope that you consider contacting your Senators, especially if your Senator is a member of the Senate Judiciary Committee. The ask is simple: while we don’t think HR 1211 is perfect, it’s a darn good bill and should be moved through that Committee and to the floor quickly. If the Senate chooses to draft its own bill, perhaps it could use HR 1211 as a starting point and consider adding in some other reforms that aren’t in the bill, including:

  • Require online posting of all released records (as opposed to the current standard that only requires posting of released records that have been requested three or more times)

  • Go further in strengthening OGIS by giving them independence, ability to review agency FOIA regulations, and giving them a direct line of communication to the agency Chief FOIA officers, as well as by increasing OGIS’ resources.

  • Taking some exemption specific actions by addressing problems deriving from over-invocation of Exemptions 3 (records protected by other statutes) and 5 (attorney/client privilege and non-final documents/work product)

  • Reviewing the fee system entirely.

Either way, the time is ripe for FOIA Reform. Your voice could be very useful in achieving that reform.

Please do not hesitate to contact AAN Legal Counsel Kevin M. Goldberg at goldberg[at]fhhlaw.com or 703-812-0462 if you have further questions about this issue.