A FOIA face-lift

Proponents call it the first major FOIA reform bill in a decade

Federal agencies that don't respond to Freedom of Information Act requests within a 20-day period could face stiffer penalties if the first major FOIA reform bill in a decade becomes law.

The Senate passed legislation Aug. 3 to improve the FOIA process through a number of amendments, including assigning tracking numbers to new requests.

In addition to mandating tracking numbers for requests expected to take longer than 10 days, the bill would extend fee waivers to nontraditional and nonaffiliated journalists, including bloggers and freelance journalists.

Other provisions would authorize a new office to help mediate agency-level disputes, require departments to report more accurately to Congress and prevent agencies from charging search fees if they don't meet the 20-day deadline.

'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 Sen. Patrick Leahy (D-Vt.), co-sponsor of the bill.

The Senate passed the OPEN Government Act by unanimous consent. In March, the House passed a similar bill, but without the additional amendments. Members from both houses will confer to work out the differences.

White House officials, however, have come out against the House bill, making it unlikely that the final legislation would become law.

The Senate bill is a response to growing congressional concerns about FOIA. Recent audits by the National Security Archive, an independent research group,  revealed that numerous agencies weren't releasing information in a timely fashion. A Knight Open Government Survey conducted by the archive found pending FOIA requests that were more than 20 years old.

'These reforms are pretty basic,' said Kristin Adair, staff counsel at the archive. 'They're things that the government hasn't been doing. Agencies are really going to have to think about the delays that they have. They now face consequences for their inaction.'

One of the important issues the bill addresses is the ability of the government to delay responding to a FOIA request until just before a court decides in favor of the requestor.

Patrice McDermott, executive director of OpenTheGovernment.org, said the measure would improve the FOIA process in a number of critical areas. 'One of those is restoring the ability to be eligible to receive attorney fees,' she said.

Previously, frequent requestors and litigators would be unable to recoup attorneys' fees because of a Supreme Court's ruling in the Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources case, McDermott said. The OPEN Government Act would clear that issue by stating that the Supreme Court's decision does not apply to FOIA cases.

The bill 'helps small newspapers and members of public who are trying to get information out of government,' McDermott said. 'Previously people were unable to find an attorney because no one would take their case. This changes that dramatically.'

Chandler is an intern at the 1105 Government Information Group.

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