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From The Coalition Column of the May 2005 Perspectives

Congress Wrestles with FOIA Reform

Bruce Craig, May 2005

Each year, a coalition of groups working for government openness—including media, history, library, and other interest groups—join together to sponsor what has come to be known as "Sunshine Week." For a full week, various media outlets focus attention on the need for openness in government. During the week of March 14–20, 2005, dozens of op-ed pieces, editorials, and columns showed up in major media outlets—all focusing on the importance of open government. This year, the effort was especially significant because it was crowned by the introduction of several measures designed to promote government openness by strengthening the Freedom of Information Act (FOIA).

The FOIA was enacted several decades back and was designed to make government more transparent. The act has been used not only by the public but also by scholars and researchers—especially historians—to gain access to documents that otherwise would have been closed to them. The problem is that although FOIA mandated responses within 20 working days, agencies often took months if not years to process FOIA requests thus creating what seem to be unwarranted delays and difficulties for researching and writing on certain history-related topics.

To more accurately determine the reasons for the delays, Senators John Cornyn (R-Tex.) and Patrick Leahy (D-Vt.) introduced on March 10, 2005, the "Faster FOIA Act" (S. 598) for establishing a Commission on Freedom of Information Act Processing Delays.

The legislation seeks to create a commission of 16 members to study the FOIA process with an eye toward finding ways to lessen delays. The bill was acted on rapidly after it was introduced; it was reported out from the Judiciary Committee and (at this writing) is pending action by the full Senate. The National Coalition for History submitted comments to the committee urging that the bill be revised to include "historians and archivists" on the study commission, but the committee preferred rapid action on the bill rather than consider suggestions from interested parties. Efforts will be made when the bill reaches the House to see that the needed amendment is made.

As already reported briefly in the April Perspectives, Senators Cornyn and Leahy had introduced (on February 16, 2005) a bill (S. 394)—"Openness Promotes Effectiveness in our National (OPEN) Government Act"—seeking to improve the accessibility of FOIA to the public. On the same day, Representative Lamar Smith (R-Tex.) introduced a counterpart bill (H.R. 867) in the House. Among other provisions, this legislation provides for requesters to recoup legal costs from suing for improperly withheld records, establishes fee waivers, and would require agencies to track requests. It would also establish an Office of Government Information Services.

On March 15, the Senate Judiciary Committee subcommittee on Terrorism, Technology, and Homeland Security held a public hearing on that measure. The National Coalition for History also submitted detailed testimony "for the record." Because of the pending enactment of the "Faster FOIA Act" congressional action on the OPEN Government Act is expected to be delayed as Congress will probably await the recommendations of the study commission authorized by the first bill prior to moving the OPEN Government Act. The House version has been referred to the House Committee on Government Reform where the less patient House may opt to act upon the bill sooner.

Finally, Senator Leahy also has reintroduced the "Restore FOIA" legislation (S. 622) to amend the Homeland Security Act of 2002 and limit new exemptions from FOIA. The bill is identical to the legislation introduced during the 108th Congress.

Leahy’s bill suggests that in the wake of the 9/11 tragedy, Congress acted hastily in passing the Homeland Security Act and needlessly created new laws that significantly weaken existing FOIA provisions. Leahy’s bill fixes some of those vulnerabilities by removing certain criminal penalties for whistle-blowers, and by narrowing the scope of the FOIA exemptions. The bill has been referred to the Senate Committee on the Judiciary for consideration.

All these bills have a number of things in common. First, they recognize that openness in government has diminished since the events of 9/11. Second, they recognize that classification actions during the Bush administration have been rising at unprecedented rates (75 percent between 2001 and 2004) and that such action by federal agencies does not necessarily improve national security; in fact, in many instances, lack of transparency can hinder security. Third, while FOIA creates a presumption of openness in government (subject to a limited number of exemptions) recent "administrative" modifications and clarifying interpretations of the exemptions are seeming to swallow up the presumption. Fourth, and perhaps most important, there is a growing bipartisan consensus that open government really does need a helping hand and that one vehicle for this is FOIA.

None of the bills mentioned above seek to make all the changes that many historians and researchers would like to see made in FOIA. Nevertheless, they are a good start. The Cornyn-Leahy bill, in particular, would make some useful improvements. Collectively these bills may signal a new bipartisan effort to draw attention to the erosion of
FOIA and the principle of openness in government.

— Bruce Craig is director of the National Coalition for History. He can be reached at rbcraig@historycoalition.org.