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FOIA Update: FOIA Reform Proposed

FOIA Update
Vol. III, No. 1

FOIA Reform Proposed

Efforts to amend the Freedom of Information Act continue on Capitol Hill.

Major highlights of the efforts to amend the FOIA have been the presentation of the Administration's proposal (see pp. 3-8 of FOIA Update) by Assistant Attorney General Jonathan C. Rose of the Justice Department's Office of Legal Policy, and subsequent hearings on this proposal (S. 1751/H.R. 4805) and on a similar proposal, S. 1730, Senator Orrin G. Hatch's FOIA reform bill. Senator Hatch is chairman of the Subcommittee on the Constitution of the Judiciary Committee. The Hatch subcommittee has held six hearings on the need for FOIA reform.

In presenting the Administration's proposal on Oct. 15, Assistant Attorney General Rose declared that the Administration stands "fully committed to carrying out the philosophy and spirit of the Act."

Rose told the Hatch subcommittee that the Administration is "concerned that in some instances the Freedom of Information Act has been used in ways that are inconsistent with the original objectives of the Congress." These include efforts for disclosures which have "interfered unduly with proper law enforcement activities and national security functions," Rose said. He also pointed to the considerable expense involved in FOIA processing and the diversion of agency resources from program responsibilities.

The Office of Legal Policy began its comprehensive review of the need for FOIA reform in May of this year by asking federal agencies to comment on problems encountered in administering the FOIA and to recommend specific changes in the law. The Administration's legislative proposal represents a synthesis of these recommendations.

The Administration's proposal includes two additional exemptions to the existing nine; clarification of several existing exemptions; modifications of provisions to allow for new time limits and fee assessments; additional procedures and protections for business information; and new provisions which would preclude use of the FOIA by persons other than U.S. citizens and by parties to lawsuits who have discovery rights.

Substantive amendments to the current FOIA exemptions include:

Exemption 1--The standard for judicial review with respect to classified records is proposed to be the "arbitrary or capricious" standard.

Exemption 2--The proposal extends confidentiality to manuals and instructions to investigators, inspectors, auditors and negotiators, and also to examination material used in employment, certification or licensing.

Exemption 4--The Administration's bill would enlarge the protection accorded business records by providing that such records are exempt if their release "may impair either the legitimate competitive, financial, or business interests of any person or the government's ability to obtain such information in the future." In addition, the bill provides procedures by which submitters of such information may have input into agency disclosure determinations. Finally, courts deciding "reverse FOIA" cases would review agency disclosure decisions according to a de novo standard.

Exemption 6--The Administration's bill extends personal privacy protection to "records or information concerning individuals"; changes the balancing standard from a "clearly unwarranted invasion of personal privacy" to an "unwarranted invasion of personal privacy"; and exempts compilations of names and addresses that could be used for solicitation purposes.

Exemption 7--The Administration's bill makes the following changes: broadening of the exemption's threshold language; addition of language to ensure that investigatory information related to ongoing investigations is fully protected; protection of information that would "tend to" disclose the identity of a confidential source; and modification of existing language to further protect confidential sources.

The bill would also provide an exemption for material related to investigations of terrorism, organized crime or foreign counterintelligence, where designated by the Attorney General.

Two additional exemptions would allow agencies to protect records generated in settlement of a legal action and technical data which may not be exported outside of the United States without agency approval.

The bill also provides for two new standards for assessing fees. The first one authorizes fees for the full costs attributable to the processing of requested records. The second permits assessments which reflect the true value of valuable technological or reference information.

On the problem of time limits, the administration proposal would retain the 10-day time limits for material which can be processed without complication in eight working hours or less. Agencies could take up to a year to respond to more complex or voluminous requests and requests where the interests of a submitter are involved, but would have to provide a specific time estimate and explanation within 10 working days of receipt.

The Administration bill also addresses the problem of the use of FOIA for discovery purposes by prohibiting a party to a judicial or administrative proceeding from filing a FOIA request for records relating to he subject matter of the proceeding.

Consideration of the Administration's package and of S. 1730 continued in the Senate Subcommittee on he Constitution during November.

Rep. Glenn English, chairman of he House Subcommittee on Government Information and Individual Rights, also has held hearings on the Freedom of Information Act and has indicated that he will consider further hearings and markup of a bill after the Senate takes action.

Go to: FOIA Update Home Page

Updated August 13, 2014