Senate Unanimously Passes Revised OPEN Government Bill

 

Leahy, Cornyn, Kyl Call On House
To Swiftly Pass FOIA Reform Legislation

 

WASHINGTON (Friday, Dec. 14, 2007) – The Senate Friday unanimously passed revised legislation to improve and strengthen the Freedom of Information Act – the law that protects the public’s right to know what their government is doing.  The Openness Promotes Effectiveness in our National (OPEN) Government Act was reintroduced by Sens. Patrick Leahy (D-Vt.), John Cornyn (R-Texas), and Jon Kyl (R-Ariz.) and passed by the Senate.

 

Leahy and Cornyn originally introduced bipartisan legislation in March to make meaningful reforms to FOIA, and the legislation was unanimously passed by the Senate before the congressional August recess.  While the House passed a similar measure, efforts to move the legislation forward were stalled over concerns about “pay-go” issues.  The Leahy-Cornyn-Kyl legislation addresses the House concerns, while preserving the key elements of the Senate-passed bill.  Leahy and Cornyn have been longtime advocates of implementing FOIA reforms to address agency delays and litigation concerns under the Freedom of Information Act.  House Oversight and Government Reform Chairman Henry Waxman (D-Calif.) has been leading efforts in the House to pass FOIA reform.

 

“Senator Cornyn and I have worked with our partners in the House for months in our joint efforts to make important reforms to the Freedom of Information Act before the end of this year,” said Leahy.  “Chairman Waxman has been an important part of these efforts, and Congress is now poised put a final bill on the President’s desk before the December recess.  I hope the House will pass this legislation next week.”

 

“It’s encouraging to see this important effort to expand open government move another step forward,” Cornyn said. “I’ll continue working with Chairman Leahy and our colleagues until these reforms are enacted into law.”

 

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.

 

The legislation will now be sent to the House for consideration. 

 

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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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Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Passage Of The OPEN Government Act

And Urging Prompt Enactment By The House Of Representatives

December 14, 2007

 

Mr. LEAHY:  Mr. President, I am pleased that -- once again -- the Senate has reaffirmed its bipartisan commitment to open and transparent government by unanimously passing the “Openness Promotes Effectiveness in our National Government Act” (the “OPEN Government Act”) -- the first major reform to the Freedom of Information Act (“FOIA”) in more than a decade.  I commend the bill’s chief Republican cosponsor, 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, so that the Senate could consider and pass meaningful FOIA reform legislation this year.

 

Earlier this year, the Senate passed this historic FOIA reform legislation, S. 849, before adjourning for the August recess.  Now that the Senate has unanimously passed a modified bill, to ensure that “pay/go” and other concerns of the House are adequately addressed, I hope that the House will promptly enact this bill and send it to the President without further delay. 

 

I have very worked hard to address the concerns of the House Oversight and Government Reform Committee, to ensure that the Congress can enact meaningful FOIA reform legislation this year.  I commend Congressman Waxman, the distinguished Chairman of that Committee, for his commitment to FOIA reform and I thank him and his staff for all of their hard work on this legislation.

 

The bill that the Senate passed today includes “pay/go” language that has been requested by the House and it also eliminates a provision on citations to FOIA exemptions in legislation that was in the previous bill.  To accommodate other concerns of the House, the bill also 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.  In addition, the bill adds FOIA duplication fees for non-commercial requestors to the fee waiver penalty that will be imposed when an agency fails to meet the 20-day statutory clock under FOIA.  While I will continue to work with the House and others to further strengthen this critical open government law, I hope that the House will promptly take up the bipartisan FOIA compromise bill that we have been able to pass so that it may be signed into law before the end of the year.

 

The First FOIA Reforms in More Than a Decade

 

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 bill 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.
   

Specifically, 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.  To ensure accuracy in FOIA responses, the bill allows federal agencies to toll the 20-day clock while they are awaiting a response to a reasonable request for information from a FOIA requester on one occasion, or while the agency is awaiting clarification regarding a FOIA fee assessment.  In addition, to encourage agencies to meet the 20-day time limit, the bill requires that an agency refund FOIA search fees – and duplication fees for non-commercial requestors -- if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute.

 

The bill also addresses a relatively new concern that, under current law, federal agencies have an incentive to delay compliance with FOIA requests until just before a court decision is made that is favorable to a FOIA requestor.  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), eliminated the “catalyst theory” for attorneys’ fees recovery under certain federal civil rights laws.  When applied to FOIA cases, Buckhannon precludes FOIA requesters from ever being eligible to recover attorneys fees under circumstances where an agency provides the records requested in the litigation just prior to a court decision that would have been favorable to the FOIA requestor.  The bill clarifies that Buckhannon does not apply to FOIA cases.  Under the bill, a FOIA requester can obtain attorneys’ fees when he or she files a lawsuit to obtain records from the government and the government releases those records before the court orders them to do so.  But, this provision would not allow the requester to recover attorneys’ fees if the requester’s claim is wholly insubstantial.  To address House “pay/go” concerns, the bill also requires that any attorneys’ fees assessed under this provision be paid from any annually appropriated agency funds.

 

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 will appoint a Chief FOIA Officer, who will monitor the agency’s compliance with FOIA requests, and a FOIA Public Liaison who will be available to resolve FOIA related disputes.

 

Finally, the bill does several things to enhance the agency reporting and tracking requirements under FOIA.  The bill creates a tracking system for FOIA requests to assist members of the public and the media.  The bill also establishes a FOIA hotline service for all federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests.  And, the bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. 

 

OPEN Government is an American Value

 

The Freedom of Information Act is an essential tool to ensure that all Americans can access information about the workings of their government.  But, after four decades, this open government law needs to be strengthened.  I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated -- so that it works more effectively for the American people.

 

Again, I commend Senators Cornyn and Kyl and the many other cosponsors of this legislation for their dedication to open government.  But, most importantly, I especially want to thank the many concerned citizens who, knowing the importance of this measure to the American people’s right to know, have demanded action on this bill.  This bill is endorsed by more than 115 business, public interest, and news organizations from across the political and ideological spectrum, including the American Library Association, the U.S. Chamber of Commerce, OpenTheGovernment.org, Public Citizen, the Republican Liberty Caucus, the Sunshine in Government Initiative and the Vermont Press Association.  The invaluable support of these and many other organizations is what led the opponents of this bill to come around and support this legislation.

 

By passing this important FOIA reform legislation, the Senate has reaffirmed the principle that open government is not a Democratic issue or a Republican issue.  But, rather, it is an American issue and an American value.  I strongly encourage the House of Representatives, which overwhelmingly passed a similar measure earlier this year, to promptly take up and enact this bill before adjourning for the year.

 

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

 

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