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FOIA Update: House Advances Limited FOIA Bill

FOIA Update
Vol. VII, No. 2

House Advances Limited FOIA Bill

Putting aside efforts towards broad FOIA reform legislation, a subcommittee of the United States House of Representatives has moved toward passage of a limited FOIA reform bill dealing with business information protection procedures only.

On May 21, such a bill was introduced by Rep. Glenn English (D. Okla.), chairman of the House Government Operations Committee's Subcommittee on Government Information, Justice and Agriculture, together with the subcommittee's ranking minority member, Rep. Thomas A. Kindness (R. Ohio).

Entitled the "Freedom of Information Act Amendments of 1986" (H.R. 4862), the bill would require by law that submitters of business information receive predisclosure notification and objection rights and also would establish a de novo review standard for any "reverse" FOIA lawsuit brought to prevent business information disclosure. Its provisions are quite similar to those contained in the more comprehensive FOIA reform bill (S. 774) that was passed by the Senate more than two years ago. (See FOIA Update, Summer 1983, at 2.)

The bill's introduction came after the subcommittee and the Department of Justice were unable to achieve an agreement on a broad package of FOIA reform amendments along the lines of S. 774 one that would contain new law enforcement protections as well as various procedural provisions. Efforts toward such an agreement were begun late last year and led to the preparation of a new comprehensive FOIA reform proposal that was circulated widely for reaction and comment during the months of March and April.

However, this proposal encountered strong opposition from many federal agencies which objected to many of its new procedural requirements that would place additional administrative burdens on them, particularly during this time of extraordinary federal budgetary constraints. Of greatest concern were the proposal's expedited access provision, which held the potential for being more burdensome than a similar provision of S. 774, and a number of new recordkeeping requirements that would have been imposed upon the process of FOIA administration.

At the same time, the subcommittee staff found it difficult to firm up a consensus of support for the proposal among the various press and public interest groups involved in the process, particularly the press organizations that have most vocally opposed any FOIA reform efforts over the years. A pivotal impediment to the reaching of an agreement was the insistence of the press groups, near the end of the discussion process, that the expedited access provision be interpreted in such a way as to apply almost automatically to any journalist working on a deadline -- which would have presented totally unacceptable difficulties to agencies.

Consequently, the subcommittee determined to narrow its focus to the less controversial subject of business information procedural provisions, which a coalition of business groups has been pressing to advance ever since FOIA reform efforts were commenced several years ago. In introducing such a limited measure. Rep. English stated that "the attempt to write a broader bill must be shelved for now."

A hearing on the business procedures bill was scheduled to be held by the subcommittee on June 5, with the expectation that only prompt action on the bill could ensure its progress through the legislative process at this stage of the legislative session. Because such business provisions have been the subject of strong opposition from at least one major public interest organization in the past the likelihood of the bill's passage is as yet uncertain.

As to the Justice Department's efforts to obtain a broader package of FOIA reform amendments, Assistant Attorney General for Legal Policy Stephen J. Markman has stated:  "The Administration remains committed to pursuing broad FOIA reform, particularly in vital law enforcement areas, and it will not allow its commitment to this important goal to be lessened by the difficulties encountered to date."

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Updated August 13, 2014