Freedom of Information Act Request Resources and U.S. Aircraft Carrier Ship Logs and Command History Reports
FOIA Part I
FOIA Part II
The FOIA Blog or
Scott Hodes, FOIA Attorney-At-Law
The Senators interested in FOIA Issues
John Cornyn, United States Senator, Texas
Sen. Patrick Leahy (D-Vt.)
Freedom of Information Act (FOIA): Issues for the 111th Congress
Litigation Under the Federal Open Government Laws (FOIA) 2006
Senate Passes Faster FOIA Act: The Senate unanimously approved bipartisan legislation, cosponsored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), to improve Freedom of Information Act (FOIA) processing. The Faster FOIA Act will create an advisory panel to examine agency backlogs and provide recommendations to Congress. The bill awaits action by the House of Representatives. EPIC previously testified before the House Oversight Committee about FOIA delays and politicized processing within the Department of Homeland Security. For more information see: EPIC: Open Government and EPIC: Litigation Under the Federal Open Government Laws. (Aug. 2, 2011)
Open Government: Access, Issues, Legislation
Freedom of Information Act (FOIA)
Action during the 112th Congress
The Faster FOIA Act of 2011 (S. 1466) sponsored by Sens. Patrick Leahy (D-VT), John Cornyn (R-TX), John Tester (D-MT), and Sheldon Whitehouse (D-RI) passed the Senate by unanimous consent on August 1, 2011. Rep. Brad Sherman (CA-27) introduced the companion bill, H.R. 1564, in the House on April 14, 2011. The bill was referred to the House Committee on Oversight and Government Reform’s Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform.
Both the House and Senate versions of the bill would establish a commission that would be required to make recommendations to Congress and the President for reducing impediments to the processing of FOIA requests. While backlogs have presented a longstanding problem in agency implementation of the FOIA, the conditions and practices that create those backlogs are somewhat enigmatic. By conducting a thorough study of the root causes of FOIA processing delays and developing concrete recommendations, the commission will help agencies successfully implement President Obama's directive to reduce the significant backlogs of outstanding FOIA requests.
ALA’s Position: The ALA supports passage of the Faster FOIA Act of 2011. Public access to information by and about the government is a basic tenet of a democratic society. The Faster FOIA Act of 2011 would help to make more government information available to the public. http://www.ala.org/advocacy/govinfo/opengov
Senate (SJC ) Approves Cornyn-Leahy FOIA Reform
Bipartisan Effort Will Address Agency FOIA Request Backlogs - April 7, 2011
WASHINGTON (Thursday, April 7, 2011) – The Senate Judiciary Committee Thursday approved bipartisan legislation authored by Senators Patrick Leahy (D-Vt.) and John Cornyn (R-Texas) to further improve the Freedom of Information Act (FOIA), the nation’s premier open government law. It is the third time since 2005 that the panel approved the legislation.
The Faster FOIA Act will create an advisory panel to examine agency backlogs in processing FOIA requests and provide recommendations to Congress for legislative and administrative action to enhance agency responses to such requests. The panel will be tasked with examining whether the system for charging fees and granting fee waivers under FOIA should be reformed in order to reduce delays in processing fee requests, as well as identifying any other methods to reduce the delay in the processing of FOIA requests.
“The Faster FOIA Act will establish a bipartisan commission to examine the root causes of agency FOIA delays, and to recommend to Congress and the President steps to help eliminate FOIA backlogs,” said Leahy. “I have said many times over the years that open government is neither a Democratic issue, nor a Republican issue – it is an American value that we all must uphold. I thank Senator Cornyn for his partnership in advancing this important bill.”
“This bill helps bring our government one step closer to better transparency,” Cornyn said. “This commission will identify methods to reduce delays in the processing of FOIA requests and ensure the efficient and equitable administration of FOIA throughout the federal government. It would be a great benefit to the American people, who deserve to be treated as valued customers when they seek answers from their government. I hope that all of my colleagues in the Senate will support this bill when it comes to the floor.”
Leahy and Cornyn introduced the Faster FOIA Act in March during the seventh annual Sunshine Week, a national observance of the importance of an open and transparent government.
In past years, Leahy and Cornyn have worked together to author successful legislation to make important reforms to FOIA, including the OPEN Government Act, which was signed into law in 2007 and made the first major reforms to FOIA in more than a decade. They also authored the OPEN FOIA Act in 2009, which mandated greater transparency for legislative exemptions to FOIA. The legislation was signed into law in the fall of 2009.
Faster FOIA Act Moves Forward in Senate: The Senate Judiciary Committee has approved bipartisan legislation, cosponsored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), to improve the Freedom of Information Act (FOIA) processing. The Faster FOIA Act will create an advisory panel to examine agency backlogs and provide recommendations to Congress. EPIC recently testified before the House Oversight Committee about FOIA delays and politicized processing within the Department of Homeland Security. For more information see: EPIC: Open Government and EPIC: Litigation Under the Federal Open Government Laws. (Apr. 12, 2011)
Act No. 51 of 2010 as made An Act to amend the law relating to access to information, and for related purposes Administered by: Prime Minister and Cabinet Originating Bill:
Freedom of Information Amendment (Reform) Bill 2009 - C2009B00257
Supreme Court Rejects Limits on FOIA Requests. In a unanimous decision, the US Supreme Court upheld the right of individuals to request documents under the Freedom of Information Act, even if similar documents were previously requested by others. The Court rejected the Federal Aviation Administration's contention that it may ignore requests if the agency previously received identical requests from different requesters. The Court also rejected the agency's "virtual representation" claim, that a FOIA requester can be "virtually represented" by a previous requester who sought similar records. The Court based its decision on America's "deep-rooted historic tradition that everyone should have his own day in court." For more information, see EPIC's FOIA Litigation Manual and FOIA Litigation Docket. (June 13, 2008)
President Bush Signs into Law OPEN Government Act. On Monday, December 31, 2007, the President signed into law S. 2488, the Openness Promotes Effectiveness in our National Government Act of 2007, which amends the Freedom of Information Act (FOIA) by: (1) establishing a definition of "a representative of the news media;" (2) directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund; (3) prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and (4) establishing an Office of Government Information Services in the National Archives and Records Administration to review agency compliance with FOIA. Senator Patrick Leahy (D-VT) led the effort in Congress to enact the new open government law with the support of the Open the Government coalition. EPIC publishes Litigation Under the Federal Open Government Laws. (December 31, 2007)
Congress Passes OPEN Government Act. Congress has passed legislation that would amend the Freedom of Information Act for the first time in a decade. The OPEN Government Act would impose meaningful deadlines on agencies handling information requests, establish a FOIA hotline, bring government records held by private contractors into full public view, create a FOIA Ombudsman, and allow agencies to waive FOIA fees for freelance journalists and bloggers. The bill also reverses a presumption against disclosure that was created by an order of former Attorney General John Ashcroft. Senator Patrick Leahy led the efforts to enact the new open government law. For more information, see EPIC's FOIA Notes and Litigation Under the Federal Open Government Laws. (December 19, 2007)
EPIC Publishes 2006 FOIA Manual. Litigation Under the Federal Open Government Laws, published by EPIC in cooperation with Access Reports and the James Madison Project, is a comprehensive guide to FOIA and open government, essential for anyone interested in open access laws. The book draws upon the expertise of practicing attorneys who are recognized experts in the field. The twenty-third edition includes a new chapter on searching for records, international open government resources, a glossary of key terms, and is updated with new significant cases. (October 4, 2007)
Published July 15, 2006 By Scott A. Hodes -
[Editor's note: please see the related article in this issue, Statement of Meredith Fuchs, General Counsel, The National Security Archive Before the House Permanent Select Committee on Intelligence Hearing on the Media’s Role and Responsibilities in Leaks of Classified Information.] http://www.llrx.com/features/leaksofclassifiedinfo.htm
The problem with making a law in the 1970s and then ignoring the fact that technology, commerce and government operations have all changed completely from the time the law was passed, is illustrated by the fee waiver provision for members of the media as set forth in the FOIA.
The FOIA grants fee waivers to "representatives of the news media, 5 U.S.C. § 552a(4)(A)(ii)(II). At the time the law came into being, the news media was either print (newspapers and magazines) or electronic (radio and TV). Today the landscape has completely changed. While news is still produced by the traditional print and electronic sources, it is also produced by an increasing amount of independent internet sites, bloggers and other entities (public and non-public), publicizing their findings on their own websites.
Agencies have now struggled for years with the question of what, in the age of the internet, constitutes the news media? Today, anyone with an internet connection can produce a site capable of publicizing information it collects via a FOIA request.
Congress has failed to address this question, leaving agencies in a no-win situation where they must struggle to find the answer to who qualifies as members of the media. If agencies fail to grant media status, they are challenged in court, such as the recent case of the National Security Archives suit against the CIA, where the CIA revoked the Archives status as a member of the media. The Archive is now challenging this decision in federal court.
Besides the legal costs of defending their actions, agencies also lose if fee waivers are granted. In a time of decreasing funding of FOIA offices, agencies lose out on being reimbursed for thousands of dollars if fees they would otherwise by being able to collect.
Additionally, one has to question whether the current fee waiver scheme is fundamentally fair, or is it merely another form of corporate welfare. Major media such as the New York Times or the Washington Post or Fox makes millions of dollars in profits every year, and no one would argue that they don’t qualify for fee waivers under the current scheme. However, the National Security Archives or an individual making a FOIA request him or herself and publishing the information on a website may not qualify for a fee waiver under current law. I would argue that fundamental justice and democratic principles should allow the FOIA fee waiver provision to find a way to put big media and the lone blogger on an equal footing. Only an act of Congress can do that.
The much anticipated reports Agency FOIA Improvement Reports Under EO 13392 are on the Department of Justice FOIA website. There are numerous reports of agencies here, however, an early reading of the goals and findings of the reports is clearly underwhelming. As it is basically a process akin to one where the student can give themselves their own grade, the reports are very generous in how the agencies will deal with the problems they have found. Rather than go through this process, it would have been more beneficial to requesters if Congress had passed the FOIA legislation proposed by Texas Senator John Cornyn. Until new legislation or real Executive action occurs, FOIA backlogs will continue to rise and requesters will continue to be an afterthought.
By Meredith Fuchs, Published on October 31, 2006
Hearing on the Media's Role and Responsibilities in Leaks of Classified Information
May 26, 2006
Meredith Fuchs serves as the General Counsel to the National Security Archive. Previously she was a Partner at the Washington, D.C. law firm Wiley Rein & Fielding LLP, where she was a member of the Litigation, Insurance, Privacy and E-Commerce practice groups. In that capacity, she supervised complex state and federal court litigation in a wide range of areas. In addition, Ms. Fuchs developed a significant e-commerce and privacy practice and has been a frequent lecturer and author on data privacy and e-commerce liability issues. Ms. Fuchs served as a law clerk to the Honorable Patricia M. Wald, U. S. Court of Appeals for the District of Columbia Circuit, and to the Honorable Paul L. Friedman, U. S. District Court for the District of Columbia. Prior to that she was the Supreme Court Assistance Project Fellow with the Public Citizen Litigation Group. Ms. Fuchs currently serves as an appointed member of the D.C. Circuit Judicial Conference Standing Committee on Pro Bono Services (2001-2004) and previously served as a member of the D.C. Bar Technology Taskforce, Subcommittee on Courts (1998-2000). Ms. Fuchs is a cum laude graduate of the New York University School of Law where she was a member of the Journal of International Law and Politics.
HOUSE OF REPRESENTATIVES
1st Session 109-226
Union Calendar No. 127
A CITIZEN'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS SECOND REPORT by the OMMITTEE ON GOVERNMENT REFORM
Available via the World Wide Web:
September 20, 2005.--Committed to the Committee of the Whole House on the State of the Union and ordered to be printed
COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
GINNY BROWN-WAITE, Florida C.A. DUTCH RUPPERSBERGER, Maryland
JON C. PORTER, Nevada BRIAN HIGGINS, New York
KENNY MARCHANT, Texas ELEANOR HOLMES NORTON, District of
LYNN A. WESTMORELAND, Georgia Columbia
PATRICK T. McHENRY, North Carolina ------
CHARLES W. DENT, Pennsylvania BERNARD SANDERS, Vermont
VIRGINIA FOXX, North Carolina (Independent)
JEAN SCHMIDT, Ohio
8 CONSERVATIVE LEADERS ENDORSE U.S. FOIA REFORM
David Keene is chairman of the American Conservative Union, one of the oldest and largest advocacy groups on the Right. A Reagan campaign stalwart, he remains a keeper of the conservative faith as one of the movement’s wise men.
Keene is also one of eight major leaders on the Right who are encouraging Sen. Cornyn in his effort to reform the federal Freedom of Information Act (FOIA) by, among other things, giving it some real teeth.
Joining Keene in signing a recent letter to Cornyn were Amy Ridenour, president of the National Center for Public Policy Research; Mike Krempasky, founder and director of RedState.org; Mark Levin, president of the Landmark Legal Foundation; Brent Bozell, president of the Media Research Center; John Berthoud, president of the National Taxpayers Union; Terence Scanlon, president of the Capital Research Center; and Alex Mooney, executive director of the National Journalism Center of Young America’s Foundation.
“As the federal government becomes ever bigger, more expensive and more intrusive, it becomes more important than ever that Americans have greater access to routine official documents that show what is being done in their name in the nation’s capitol, subject only to reasonable exceptions like national security, law enforcement, personal privacy, etc.,” the conservative leaders told Cornyn.
– Mark Tapscott, The Heritage Foundation http://www.opengovva.org/content/view/777/154
(From Capitol Hill Press Releases)
For Immediate Release
Senate Approves Cornyn-Leahy Foia Reform
Contact: Don Stewart (Cornyn) 202-224-0704
June 24, 2005
WASHINGTON-Legislation passed by the U.S. Senate on Friday will bring increased sunshine to the federal legislative process, and was another step toward strengthening the Freedom of Information Act (FOIA), its sponsors say. The reform, authored by U.S. Sen. John Cornyn (R-Texas), creates additional legislative transparency by requiring that any future legislation containing exemptions to requirements be "stated explicitly within the text of the bill." The bill (S. 1181) was the latest in a series of FOIA reform bills filed by Cornyn and U.S. Sen. Patrick Leahy (D- Vt.), an original co-sponsor of the legislation.
"If Congress is to establish a new exemption to FOIA, it should do so in the open and in the light of day, and the unanimous passage of this legislation makes clear that the Senate understands the need for that reform," Cornyn said following the vote. "The default position of our government must be one of openness. If records can be open, they should be open. If good reason exists to keep something closed, it is the government that should bear the burden - not the other way around."
Leahy, a longtime advocate in Congress for open government and a FOIA champion, said: "In passing this bill, the Senate has taken a step toward helping Congress be diligent in reviewing these exemptions to prevent possible abuses. The American people deserve our ongoing diligence in limiting undue exemptions that only serve to clog the plumbing and limit the public's right to know."
Sens. Cornyn and Leahy introduced the Openness Promotes Effectiveness in our National Government Act of 2005 (OPEN Government Act, S. 394) on Feb. 16, and a separate bill on March 10 to establish an advisory Commission on Freedom of Information Act Processing Delays. Other co-sponsors of the OPEN Government Act include Sens. Russell Feingold (D-Wisc.), Lamar Alexander (R- Tenn.), Johnny Isakson (R-Ga.) and Ben Nelson (D-Neb.).
Sen. Cornyn chaired a hearing on March 15 that examined the OPEN Government Act. The last time Congress approved major reforms to FOIA was nearly a decade ago, and the Senate Judiciary Committee had not convened an oversight hearing on compliance issues since 1992. The Senate Homeland Security and Governmental Affairs Committee, which shares jurisdiction over federal government information, has not held a FOIA oversight hearing since 1980.
Cornyn was presented with the James Madison Award in 2001 for his efforts as Texas Attorney General to promote open government by the Freedom of Information Foundation of Texas. Sen. Cornyn served previously as Texas Attorney General, Texas.
Cornyn, Leahy Introduce Bill
To Promote Openness In Government
Bipartisan Legislation Improves, Strengthens FOIA
WASHINGTON (Wednesday, Feb. 16) -- U.S. Senators John Cornyn (R-Texas), a member of the Senate Judiciary Committee, and Patrick Leahy (D-Vt.), the ranking Democratic member of the panel, introduced legislation on Wednesday to achieve meaningful reforms to federal government information laws, most notably the Freedom of Information Act of 1966 (FOIA).
The bipartisan “Openness Promotes Effectiveness in our National Government Act of 2005”, or the OPEN Government Act, is aimed at substantially enhancing and expanding the accessibility, accountability, and openness of the federal government. The legislation is supported by groups from across the political spectrum, including the ACLU and the Heritage Foundation.
“This reform legislation was created from the belief that FOIA establishes a presumption of openness,” said Cornyn, who in 2001 was presented with the James Madison Award for his efforts to promote open government by the Freedom of Information Foundation of Texas. “Open government is one of the most basic requirements of any healthy democracy. It allows for taxpayers to see where their money is going; it permits the honest exchange of information that ensures government accountability; and it upholds the ideal that government never rules without the consent of the governed.”
“This bill advances one of the most fundamental rights of Americans, the public’s right to know what its government is doing,” said Leahy, who has been a longtime champion of FOIA in Congress. Leahy sponsored the Electronic Freedom of Information Act Amendments, which updated FOIA for the Internet age, and in 1996 he was installed in the Freedom of Information Act Hall of Fame.
“Access to public information in a timely and effective manner is a vital piece of our democratic system of checks and balances that promotes accountability and imbues trust,” said Leahy. “FOIA represents the foundation of our modern open government laws and this bill builds on that by updating its protections to include new technologies and refining the process to reduce delays and encourage accessibility.”
The Cornyn-Leahy legislation is not just pro-openness, pro-accountability, and pro-accessibility - it's also pro-Internet. It includes a hotline enabling citizens to track their requests, including Internet tracking, and grants privileged FOIA fees for bloggers and writers for Internet outlets, providing the same status as traditional media.
The last time Congress approved major reforms to FOIA was nearly a decade ago, and the Senate Judiciary Committee has not convened an oversight hearing on compliance issues since April 30, 1992. The Senate Homeland Security and Governmental Affairs Committee, which shares jurisdiction over federal government information, has not held a FOIA oversight hearing since 1980.
The OPEN Government Act contains more than 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 manner
(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
·Authorize reasonable 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
# # # # #
(Senator Leahy’s remarks on the introduction of the bill, delivered on the Senate floor Wednesday morning, follows.)
Statement of Senator Patrick Leahy
Introduction of the
“Openness Promotes Effectiveness
In our National Government Act”
(OPEN Government Act of 2005)
February 16, 2005
MR. LEAHY. I am pleased to join as a partner with the Senator from Texas in introducing the OPEN Government Act of 2005. I have devoted a considerable portion of my work in the Senate to improving government oversight, government openness and citizen “right-to-know” laws to make government work better for the American people, and at times it has been a lonely battle. Finding dedicated allies on the other side of the aisle has proven difficult. That is why I am delighted to have a partner in John Cornyn. Senator Cornyn has a distinguished record of supporting open government dating back to his days as Attorney General of Texas. In fact, some of the provisions in the bill we introduce today are modeled after sections of the Texas Public Information Act.
I believe that we both see this effort as the first of many bipartisan steps we can take together in the new Congress. Senator Cornyn and I began to forge a partnership on improving public access to government information well over a year ago when, during the 108th Congress, we worked with several other Senators and with the Library of Congress to improve the publicly accessible congressional information website, THOMAS. He and I also cooperated last fall in a successful effort to ensure that “government information,” including the application of the Freedom of Information Act (FOIA), be subject to the jurisdiction of both the Judiciary Committee and the newly constituted Homeland Security and Governmental Affairs Committee.
The bill we introduce today is a collection of commonsense modifications designed to update FOIA and improve the timely processing of FOIA requests by Federal agencies. It was drafted after a long and thoughtful process of consultation with individuals and organizations that rely on FOIA to obtain information and share it with the public, including the news media, librarians, and public interest organizations representing all facets of the political spectrum.
The OPEN Government Act reaffirms the fundamental premise of FOIA: government information belongs to all Americans and should be subject to a presumption in favor of disclosure. James Madison said that “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.” His caution rings just as true today. The public’s right to know what its government is doing promotes accountability, imbues trust and contributes to our system of checks and balances.
First enacted in 1966, FOIA represents the foundation of our modern open government laws. In 1996, I was the principal author of the Electronic Freedom of Information Act Amendments, which updated FOIA for the internet age. The bill we introduce today is the next step: a practical set of important modifications that respond to common complaints and limitations in the current system that we have heard, whether from frequent FOIA requestors, such as representatives of the press, or individual citizens who may only occasionally rely on FOIA, but who nonetheless deserve timely and comprehensive responses to their requests.
Chief among the problems with FOIA implementation is agency delay. Following the successful model of the Texas Public Information Act, this legislation imposes penalties on agencies that miss statutory deadlines to release documents and strengthens reporting requirements on FOIA compliance.
The OPEN Government Act responds to some confusion over the applicability of FOIA to agency records that are held by outside private contractors. It does this by clarifying that such records are subject to FOIA wherever they are located.
Our legislation establishes an ombudsman to mediate FOIA disputes between agencies and requestors, a step that many FOIA requestors believe will help to ameliorate the need for FOIA litigation in the Federal courts. We hope that this mechanism will work to the benefit of all parties. However, where mediation fails to resolve disputes, our bill preserves the rights of requestors to litigate under FOIA.
Our bill responds to recent Federal jurisprudence by explicitly providing for recovery of attorneys’ fees under the so-called “catalyst theory.” That is, where a FOIA lawsuit was the catalyst for an agency determination to release documents prior to a court’s entry of judgment, the plaintiff may recover attorneys’ fees.
Finally, the bill requires reports on a controversial law, the Critical Infrastructure Information Act, enacted as part of the Homeland Security Act of 2002, and it protects fee-waiver status for journalists under FOIA.
Letters of support for the OPEN Government Act have been submitted by the 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, and the Society of Environmental Journalists.
The Freedom of Information Act is an invigorating mechanism that helps keep our government more open and effective and closer to the American people. FOIA has had serious setbacks in recent years that endanger its effectiveness. This legislation is a rare chance to advance the public’s right to know.
I thank my colleague, the Senator from Texas, for the time and effort he has devoted to protecting the public’s right to know, and I urge all members of the Senate to join us in supporting this important legislation.
Senators Propose Bipartisan Bill to Study FOIA Processing Delays. Senators John Cornyn (R-TX) and Patrick Leahy (D-VT) have introduced the Faster FOIA Act, legislation that will create a sixteen-member advisory commission tasked with suggesting ways to decrease delays in the processing of Freedom of Information Act requests. The bill is the second proposed by the Senators in three weeks to improve the Freedom of Information Act. The Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security will hold a hearing on the OPEN Government Act on March 15. (March 11, 2005)
Bipartisan Bill Introduced to Enhance Open Government. Senators John Cornyn (R-TX) and Pat Leahy (D-VT) have introduced the OPEN Government Act, a bill that will improve government accountability by strengthening federal laws such as the Freedom of Information Act. EPIC is among the many groups supporting this legislation to encourage access to the federal government. (February 16, 2005)
Legal Documents on FOIA and Access to Government Information
· The Freedom of Information Act
· The Electronic Freedom of Information Act Amendments of 1996 and the House Report on the legislation
· The Federal Advisory Committee Act (FACA). Establishes the right to obtain documents from committees that advise government agencies.
· Executive Order 12958 on Classification of National Security Information (1995).
· Earlier 1982 Executive Order 12356 on National Security Information.
U.S. Attorney's Office "Laffey Matrix" establishing attorney's fees rates in Washington, DC.
Guides to Using FOIA
· EPIC FOIA Litigation Manual
· Citizens Guide to the Freedom of Information Act from the U.S. Congress (2002) (excellent resource).
· DOJ 2002 Guide to the Freedom of Information Act. (comprehensive guide designed for government FOIA litigators).
· Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and the Privacy Act from the Federal Information Center (1994).
· FOIA Kit from FOIA, Inc. (1988) (includes addresses of major agency FOIA offices, but somewhat out-of-date).
· September 1995 Justice Department press release concerning DOJ employee compliance with FOIA.
Other Open Government Resources
· Access Reports (a leading newsletter on access issues; includes news items, useful links and text of relevant statutes)
· The FBI's Freedom of Information and Privacy Acts Page
· Reporters Committee for Freedom of the Press (includes forms for generating FOIA requests)
· Right to Know Network
· The Federation of American Scientists' Project on Government Secrecy
· The Freedom of Information Center at the University of Missouri
· Freedom of Information Sites on the Internet
Position Papers & Petitions
From time to time the Coalition of Journalist for Open Government and concerned members file letters of protest to various officials or comments solicited by federal departments as they are implementing new regulations. In addition, many of the CJOG member organizations have individually filed letters of concern or protests, or joined in lawsuits on open government issues.
The Freedom of Information Act (FOIA) was passed by Congress in 1966 and amended in 1974 in order to create an open government. The FOIA applies only to federal agencies and does not create a right of access to records held by Congress, the courts, or by state or local government agencies. Each state has its own public access laws.
FOIA and the Emergence of Federal Information Policy in the 1980s and 1990s Published as chapter 4 of
G. David Garson (ed), Handbook of Public Information Systems
(NY: Marcel Dekker, 2000).
Draft as submitted by Jeremy R. T. Lewis
Huntingdon College, Montgomery Alabama
NO TIME TO IPDATE NOW
Freedom of Information Act Request Resources and U.S. Aircraft Carrier Ship Logs and Command History Reports
FOIA Part I
FOIA Part II