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FOIA Update: Congressional Hearing Looks at Agencies' Electronic FOIA Amendment Implementation

FOIA Update
Vol. XIX, No. 3

Congressional Hearing Looks at Agencies'
Electronic FOIA Amendment Implementation

As a follow-up to the enactment of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, a House of Representatives subcommittee has held a congressional hearing to look at the implementation of that legislation by federal agencies.

On June 9, an oversight hearing was held by the House Committee on Government Reform and Oversight's Subcommittee on Government Management, Information, and Technology. Entitled "Implementation of the Electronic Freedom of Information Act Amendments of 1996: Is Access to Government Information Improving?," the hearing was chaired by subcommittee chairman Stephen Horn.

Importance of Affirmative Disclosure

Chairman Horn spoke of the hearing's purpose as follows: "The Electronic Freedom of Information Act Amendments of 1996 made two major changes to the [FOIA]. One, the amendments provided for an increase in affirmative disclosures of Government information. That is, the amended law requires agencies to make certain categories of records available -- including on the Internet -- without waiting for individual Freedom of Information requests. Two, the amendments make changes to the Freedom of Information requesting process itself in an effort to make FOIA a more effective tool for accessing Government information. We wish to examine implementation of the various provisions in the 1996 amendments that promote these two broad goals."

To address this, the subcommittee heard from a total of eight witnesses -- four representatives of public interest organizations and four representatives of federal agencies, including the Department of Justice.

The subcommittee first heard from Patrice McDermott, of the OMB Watch organization, which in late 1997 and early 1998 conducted a study of agency implementation of the 1996 amendments as reflected on their sites on the World Wide Web. OMB Watch provided a critical review of agency FOIA web sites. Also critical of agency activities, most particularly regarding agency obligations to identify their "major information systems," was Michael E. Tankersly, who spoke on behalf of the Public Citizen Litigation Group.

James Riccio, an attorney for the public interest organization Critical Mass Energy Project, spoke of the importance of the electronic availability of agency information for research purposes. Jane Kirtley, Executive Director of the Reporters Committee for Freedom of the Press, observed that some aspects of the amended Act seem to be working better than others and that journalists now make heavy use of agency World Wide Web sites in their work. She also expressed concerns about the withholding of information by agencies under the personal privacy exemptions of the Act.

Chairman Horn and other members of the subcommittee asked several questions about agency implementation of the amendments from the FOIA requester's perspective. They also questioned each of the four agency representatives regarding such matters as their budgets, their FOIA backlogs, their FOIA web sites, their major information systems, and their agencies' amendment-implementation activities.

Agencies were represented at the hearing by John E. Collingwood, FBI Assistant Director for Public and Congressional Affairs, who addressed the FBI's FOIA backlog-reduction activities; Patricia M. Riep-Dice, NASA's FOIA Officer, who described NASA's FOIA web site development; and Abel Lopez, Acting Director of the Department of Energy's Freedom of Information Division, who discussed his agency's amendment implementation.

The Department of Justice was represented by Office of Information and Privacy Co-Director Richard L. Huff, who spoke of the implementation of the amendments within the Justice Department and also of the Department's activities to aid the amendments' implementation by other agencies. (See pages 5-6 of this issue of FOIA Update.) He stated that the Department was planning to hold a FOIA Officers Conference on the subject, for the principal administrative FOIA officers of all agencies, during the next month.

FOIA Officers Conference

This FOIA Officers Conference was held by the Office of Information and Privacy on July 14 at NASA Headquarters. Agency activities in implementation of the Electronic FOIA amendments were discussed, with primary focus on agency development and use of World Wide Web sites for FOIA purposes. OIP distributed a set of recommendations for agency FOIA web sites (see pages 3-4 of this issue of FOIA Update), and the session included a demonstration of NASA's web site. It was attended by more than 150 principal administrative FOIA officers of federal agencies and accompanying information resource management personnel.

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Updated August 13, 2014