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Senate Passes FOIA Reform. On to House.

December 8, 2014
"Without objection?"

“Without objection?”

Shortly after 5:10 PM today, the Patrick Leahy (D-VT) – John Cornyn (R-TX) FOIA Improvement Act —Senate Bill S 2520— passed through the Senate via unanimous consent (video here at the 5:12 ET) .  It now travels to the House which has already unanimously passed its own Darryl Issa (R-CA) – Elija Cummings (D-MD) companion FOIA.  The two houses have been in communication, and reconciliation of the bills before the Congressional session ends is likely.

The Senate bill was unanimously reported out of the Judiciary Committee with a Manager’s Amendment which removed an Exemption Five balancing test, but kept the remainder of the bill intact. (See here for why the NS Archive still strongly supports the bill and is confident it will now be harder to withhold historic and contemporary documents under Exemption Five.)

Senators Leahy and Cornyn were able to work with their colleagues to overcome several holds and pass the bill through unanimous consent.  No easy feat.  Hats off to these two lions of FOIA.

S. 2520

S. 2520

The final Senate FOIA bill includes:

*A new statutory provision stating that agencies cannot use some exemptions (including Exemption Five) to “withhold information… merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption” or “merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.”

*another provision which precludes agencies from using Exemption Five to withhold documents over 25 years old. This means, for example, that the CIA couldn’t misapply Exemption Five and use it continue to hide a 30-year-old volume of the agency’s draft “official history” of the Bay of Pigs debacle.

*Requires that no later than 180 days after the bill becomes law agencies must update their Freedom of Information Act regulations to reflect the law, including the requirement that requesters are alerted of the FOIA Ombuds Office, the Office of Government Information Services.  Earlier this year a National Security Archive audit found that almost half of all federal agencies had regulations that were out of date.

*Fixes a fee fix from 2007 that some agencies had established a loophole to avoid.  Now, if an agency goes over its deadline for processing requests it can not charge search fees, unless the request is larger than 50,000 pages.  Requesters can now receive documents in electronic format, when requested.

*The Office of Government Information Services gained further independence.  The bill now states OGIS “shall not be required to obtain the prior approval, comment, or review of any officer or agency of the united states, including the Department of Justice, the Archivist of the United States, or the Office of Management and Budget” before submitting reports, testimony, recommendations, or comments.

*A requirement that agencies report the number of FOIAed records made available on agencies’ websites.  (The National Security Archive argues almost all records should be.)

*Required Government Accountability Office reporting on use (and possible abuse) of Exemptions Three and Five. (This was actually a sweetener added by the Manager’s Amendment.)

*A study on how agencies can effectively reduce their FOIA backlogs.

*Codification of the job requirements of each agency’s Chief FOIA Officer.

*The Establishment of a Chief FOIA Officer’s Council charged with: developing recommendations for increasing FOIA compliance, disseminating information on FOIA best practices, developing FOIA performance measures, and consulting regularly with members of the public.

*And (potentially a big one) the creation of “a consolidated online request portal” that allows FOIA requests to “any agency from a single website.”  Moreover, the Office of Management and Budget is now required to ensure that agencies’ FOIA processing software is inter-operable with the portal.

The next step for the FOIA improvement Act is a vote in the House.  The bill is not yet scheduled for a vote.  Contact Speaker of the House John Boehner and House Majority Leader Kevin McCarthy to allow the House to vote to pass this legislation.  Finally, it will arrive at the president’s desk.

——–

Here is Senator Leahy’s press release, section by section analysis, and floor statement.

Here is Open the Government’s press release.  And a special thank you to Amy Bennett who herded open government advocates, staffers, Representatives, and Senators for two years working on the bill.  She will soon begin working for the Office of Government Information Services where FOIA requesters and processors will be lucky to utilize her indefatigable efforts.

Here is the committee report.  (H/T freedominfo.org)

More updates as they come.  On to the House (again)!

 

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