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FOIA Update: FOIA Reform Bill Moves Forward

FOIA Update
Vol. III, No. 2

FOIA Reform Bill Moves Forward

The Freedom of Information Reform Act -- a comprehensive FOIA revision supported by the Administration--has moved forward for consideration in the Senate this spring.

The Constitution Subcommittee of the Senate Judiciary Committee, chaired by Senator Orrin G. Hatch, marked up S. 1730, Senator Hatch's reform bill, in mid-December as the first session of the 97th Congress drew to a close.

The markup incorporated provisions of S. 1751, the Administration's FOIA improvements bill, into the measure, which received bipartisan support. The full Judiciary Committee is expected to clear the bill by the end of March.

Action by the Constitution Subcommittee followed a series of six hearings chaired by Senator Hatch on the Freedom of Information Act. Three days of hearings were also held by Rep. Glenn English's Subcommittee on Government Information and Individual Rights in the first session of this Congress. English has said that his subcommittee will consider additional hearings and markup of a bill revising the FOIA after the Senate has completed its action.

The bill as marked up by the Constitution Subcommittee would make comprehensive FOIA improvements, all supported by the Administration. These include:

Fees -- The Office of Management and Budget would be authorized to issue guidelines to assist agencies in promulgating uniform fee regulations. Under the bill, agencies would not charge a fee for any request that requires no more than two hours of processing time and which results in the release of no more than 20 pages of records. The bill otherwise authorizes agencies to charge for "all costs reasonably and directly attributable" to a request, including search, duplication and processing. In addition, an agency could elect to charge fees reflecting the fair market value of valuable technological information developed or acquired by the government at substantial cost. The section also calls for reduction or waiver of fees in cases in which it can be determined that it is in the public interest to do so. One half of all fees collected in FOIA processing would be retained by agencies.

Time Limits -- Under this section of the bill an agency would still have 10 working days in which to inform a requester as to whether it will make a release and to provide a justification for its action, but it would be able to invoke an extension of 60 working days based upon "unusual circumstances." The new bill broadens the number and scope of such "unusual circumstances" to include such factors as the volume of requests received, requests which may impair or impede an agency's work, and requests which involve consultation with a submitter. An agency would also retain the right to invoke "exceptional circumstances" beyond the initial 70 working days, and under the bill it would not be deemed in violation of law absent the issuance of a court order. The new proposal also includes a provision allowing expedited access when it is determined by an agency to be in the public interest.

Notice to Submitters -- The bill contains a section providing for notice to be given to submitters of trade secrets, or research, financial or business information, when there has been a FOIA request for the information. Submitters would have 10 working days to object to release. If the information is exempt, the agency could not make a discretionary release unless the failure to do so would impair the public interest.

Judicial Review -- The measure provides that requesters have 180 days from the date of final agency action, and submitters have the period prior to release, in which to file complaints seeking to compel or prevent disclosure, respectively. The court in which the original complaint is filed would have jurisdiction over both the requester and submitter. The bill would also provide new procedural protections for the security of in camera submissions.

Duplicative Requests -- The bill would free an agency from having to produce under the FOIA any material already a matter of public record. An agency would also be able to look at instances in which a requester has made several requests within a two-year period and may promulgate regulations aimed at avoiding unnecessary duplication of effort and material.

The Exemptions

The new bill would establish the arbitrary or capricious standard of review for Exemption 1 information; would strengthen Exemption 2 by expressly protecting manuals, instructions to inspectors, investigators, auditors, and negotiators, as well as examination material; and would broaden Exemption 4 by protecting information when release could impair competitive, research, financial or business interests.

The reform bill would also remove the threshold "files" requirement of Exemption 6 and would specify that an invasion of personal privacy would be "clearly unwarranted" absent any overriding disclosure benefit to the public interest.

The bill would likewise broaden the threshold language of Exemption 7, as well as the protections for information relating to ongoing investigations and for information pertaining to law enforcement sources. In addition, categories of records pertaining to investigations of terrorism, organized crime or foreign counterintelligence matters could be protected where designated by the Attorney General.

New Exemptions

Two additional exemptions would allow agencies to withhold records generated in settlement of a legal action and technical data subject to export rules.

New Protections

The bill would limit use of the Freedom of Information Act to United States citizens, lawful aliens, U.S. corporations or unincorporated associations with a substantial membership of citizens and would allow agencies to prohibit its use by felons. There is also a provision prohibiting requesters from using the FOIA in place of, or in addition to, existing judicial discovery rights. Finally, the bill would provide special protection for informant records when sought by third parties.

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Updated August 13, 2014