More on FOIA reform passing out of the Senate...

The newspapers have been remarkably -- and disturbingly -- quiet on a landmark event in FOI...

Secrecy News has the Congressional Record text here...

And, with apologies for the lengthy post, here is the official Judiciary Committe release:

WASHINGTON (Monday, August 6) – The U.S. Senate passed sweeping bipartisan legislation Friday that will streamline and increase government transparency. The OPEN Government Act of 2007 (S. 849), introduced by Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas), a member of the panel, passed late Friday night by unanimous consent.

“For more than four decades, FOIA has translated the great American values of openness and accountability into practice by guaranteeing access to government information,” said Leahy, a long time leader on FOIA legislation and government transparency. “The OPEN Government Act will help ensure that these important values remain a cornerstone of our American democracy.”

The OPEN Government Act – the first major strengthening of FOIA in more than a decade – is expected to pass the House when Congress returns to session this September, and the President is expected to sign the bill.


Below is Sen. Leahy’s statement on the passage of the OPEN Government bill. Background summaries on the Kyl-Leahy Amendment and the Cornyn-Leahy Bill follow.
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Contact: Tracy Schmaler, 202-224-2154

Statement Of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee,
The OPEN Government Act
Senate Proceedings
August 3, 2007

Mr. President, I am pleased that the Senate has passed the Leahy-Cornyn Openness Promotes Effectiveness in our National Government Act” (the “OPEN Government Act”), S.849, before adjourning for the August recess. This important Freedom of Information Act legislation will strengthen and reinvigorate FOIA for all Americans.

For more than four decades, FOIA has translated the great American values of openness and accountability into practice by guaranteeing access to government information. The OPEN Government Act will help ensure that these important values remain a cornerstone of our American democracy.

I commend the bill’s chief Republican cosponsor, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. Since he joined the Senate five years ago, Senator Cornyn and I have worked closely together on the Judiciary Committee to ensure that FOIA and other open government laws are preserved for future generations. The passage of the OPEN Government Act is a fitting tribute to our bipartisan partnership and to openness, transparency and accountability in our government.

I also thank the many cosponsors of this legislation for their dedication to open government and I thank the Majority Leader for his strong support of this legislation. I am also appreciative of the efforts of Senator Kyl and Senator Bennett in helping us to reach a compromise on this legislation, so that the Senate could consider and pass meaningful FOIA reform this legislation before the August recess.

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.

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 journalist 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 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 prohibits an agency from collecting search fees 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 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 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 FOIA 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. Tracking numbers are not required for FOIA requests that are anticipated to take ten days or less to process. 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.

In addition, the bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. And, to create more transparency about the use of statutory exemptions under FOIA, the bill ensures that FOIA statutory exemptions that are included in legislation enacted after the passage of this bill clearly cite the FOIA statute and clearly state the intent to be exempt from FOIA.

OPEN Government is an American Value

The Freedom of Information Act is critical to ensuring that all American citizens 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.

I am also please that, by passing this important reform legislation today, 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 commend all of my Senate colleagues, on both sides of the aisle, for unanimously passing this historic FOIA reform measure. I hope that the House of Representatives, which overwhelmingly passed a similar measure earlier this year, will promptly take up and pass this bill and that the President will then promptly sign it into law.

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kyl-leahy amendment
to leahy-Cornyn Openness Promotes Effectiveness in our
National Government Act of 2007 (“OPEN Government Act”)

§ 3 – DEFINITION OF NEWS MEDIA
“Representative of the news media” is defined broadly enough to encompass all members of the old and new media. It includes anyone who gathers information of “potential interest to a segment of the public,” uses an editorial process and disseminates their product to an audience of any size. It states explicitly that as methods of news delivery evolves, alternative media shall be encompassed. This provision ensures that blogs and other Web-based forms of media are covered by the bill.

§ 4 – ATTORNEYS’ FEES
· A 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.

§ 6(a) – 20-DAY TIME LIMIT AND TOLLING
· The 20-day period that agencies have to respond to FOIA requests is changed to commence when the request is received by the appropriate component of the agency. If a FOIA request is received by a different component of the agency that handles FOIA requests, the agency has 10 days to deliver the request to the appropriate agency component before the 20-day clock starts to run.
· Allows federal agencies to toll the 20-day clock while awaiting a response to a request for information from a FOIA requester on one occasion reasonable, or while awaiting clarification regarding a fee assessment.

§ 6(b) – COMPLIANCE WITH TIME LIMITS
· Changes the penalty for non-compliance with the 20-day time limit from the loss of the agency’s ability to claim an exemption under FOIA to a waiver of search fees.

§ 7(a) – STATUS OF REQUESTS
· Clarifies that tracking numbers are not required for FOIA requests that are anticipated to take 10 days or less to process.

§ 8 – CLEAR STATEMENT FOR EXEMPTIONS
· Ensures that FOIA statutory exemptions enacted after the passage of this bill clearly cite the FOIA statute and state the intent to exempt the legislation from FOIA.

§ 10 – PRIVATE RECORDS MANAGEMENT
· Clarifies that FOIA applies to government records maintained by government contractors who have been contracted to store and manage data for federal agencies or departments.

§ 11 – OFFICE OF GOVERNMENT INFORMATION SERVICES/OMBUDSMAN
· Creates an Office of Government Information Services in the National Archives and creates an ombudsman to mediate agency-level FOIA disputes
· Ensures that each federal agency shall appoint:
1. A Chief FOIA Officer who will monitor the agency’s compliance with FOIA requests, and ensure that they are responded to quickly and efficiently.
2. A FOIA Public Liaison who will be available to FOIA to resolve FOIA related disputes.

§ 12 – CRITICAL INFRASTRUCTURE INFORMATION
· Strikes the Critical Infrastructure Information reporting requirements from the bill.

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Leahy-Cornyn Openness Promotes Effectiveness in our
National Government Act of 2007 (“OPEN Government Act”)

Led by U.S. Senators Patrick Leahy and John Cornyn , the OPEN Government Act of 2007 is a bipartisan effort to achieve meaningful reforms to federal government information laws – including, most notably, the Freedom of Information Act of 1966 (“FOIA”). The legislation would substantially enhance and expand the accessibility, accountability, and openness of the federal government. It has been nearly a decade since Congress has approved major reforms to FOIA.

This legislation is the culmination of extensive discussions between the offices of Senators Leahy and Cornyn and various members of the requestor community. The bill is supported by a broad coalition of organizations across the ideological spectrum, including:


American Association of Law Libraries
American Civil Liberties Union
American Library Association
American Society of Newspaper Editors
Associated Press Managing Editors
Association of Health Care Journalists
Center for Democracy & Technology
Coalition of Journalists for Open Government
Committee of Concerned Journalists
Education Writers Association
Electronic Privacy Information Center
Federation of American Scientists/Project on Government Secrecy
Free Congress Foundation/Center for Privacy & Technology Policy
Freedom of Information Center, University of Missouri


The Freedom of Information Foundation of Texas
The Heritage Foundation/Center for Media and Public Policy
Information Trust
National Conference of Editorial Writers
National Freedom of Information Coalition
National Newspaper Association
National Security Archive/George Washington University
Newspaper Association of America
People for the American Way
Project on Government Oversight
Radio-Television News Directors Association
The Reporters Committee for Freedom of the Press
Society of Environmental Journalists
Vermont Coalition for Open Government
Vermont Press Association


The bill contains important Congressional findings to reiterate and reinforce the view that the Freedom of Information Act establishes a presumption of openness, and that our government is based not on the need to know, but upon the fundamental right to know. The bill also contains over a dozen substantive provisions, designed to achieve the following four objectives:

(1) Strengthen FOIA and close loopholes.
(2) Help FOIA requestors obtain timely responses to their requests.
(3) Ensure that agencies have strong incentives to act on FOIA requests in a timely fashion.
(4) Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible.


STRENGTHEN FOIA AND CLOSE LOOPHOLES

· Ensure that FOIA applies when agency recordkeeping functions are outsourced.
· Establish a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation.
· Impose annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information.
· Protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association – including bloggers and other Internet-based journalists.
· Provide reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests.

HELP FOIA REQUESTORS OBTAIN TIMELY RESPONSES

· Establish FOIA hotline services, either by telephone or on the Internet, to enable requestors to track the status of their requests.
· Create a new FOIA ombudsman, located at the Administrative Conference of the United States, to review agency FOIA compliance and provide alternatives to litigation.
· Restore the catalyst theory for the recovery of attorney fees when litigation is inevitable.

ENSURE THAT AGENCIES HAVE STRONG INCENTIVES
TO ACT ON FOIA REQUESTS IN TIMELY FASHION

· Restore meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request.
· Impose real consequences on federal agencies for missing statutory deadlines.
· Enhance authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure.
· Strengthen reporting requirements on FOIA compliance to identify agencies plagued by excessive delay, and to identify excessive delays in fee status determinations.

PROVIDE FOIA OFFICIALS WITH THE TOOLS THEY NEED
TO ENSURE THAT OUR GOVERNMENT REMAINS OPEN AND ACCESSIBLE

· Improve personnel policies for FOIA officials to enhance agency FOIA performance.
· Examine the need for FOIA awareness training for federal employees.
· Determine appropriate funding levels needed to ensure agency FOIA compliance.