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FOIA Update: Senate Committee Approves Broad FOIA Reform Bill

FOIA Update
Vol. III, No. 3

Senate Committee Approves Broad FOIA Reform Bill

The Senate Judiciary Committee on May 20 unanimously approved the Freedom of Information Reform Act, a comprehensive FOIA revision supported by the Administration. The Judiciary Committee's action, by a vote of 17-0, came after several weeks of intense negotiations which, in the end, unified the committee in support of a broad FOIA reform package.

Senator Orrin Hatch (R-Utah), chairman of the Judiciary Committee's Subcommittee on the Constitution, led the efforts in steering the reform bill, S. 1730, through the subcommittee and committee levels. The marked-up bill is an amalgam of proposals introduced by Senator Hatch and the Administration last year, with some modifications reflecting the concerns of Senator Patrick Leahy (D-Vt.). who served as spokesman for the views of various public interest and media groups on the bill.

Joining with Senators Hatch and Leahy in refining the bill for committee approval were two other members of the Constitution Subcommittee, Senators Dennis DeConcini (D-Ariz.) and Charles Grassley (R-Iowa). Their combined efforts ensured strong bipartisan support for a broad FOIA reform measure.

The bill is now expected to reach the Senate floor by mid-summer, where its broad support should lead to passage by the full Senate with no more than slight refinement. It would then move for consideration to the House of Representatives where Rep. Glenn English, chairman of the House Subcommittee on Government lnformation and Individual Rights, is awaiting full Senate action before commencing FOIA reform efforts there.

Senator Leahy has publicly committed himself to urge House Democrats to support the bill marked up by the Senate Judiciary Committee. While the timing of future House action is not yet certain, Senator Leahy's backing of the bill should promote a positive reception on both sides of the aisle there.

The marked-up bill would make comprehensive changes in existing law, including the following:

Fees and Waivers: Similar to earlier versions, the new bill would authorize the Office of Management and Budget to issue guidelines aimed at developing a uniform schedule of fees and processing procedures for all agencies. Under the bill, agencies could charge fees for "all costs reasonably and directly attributable to" search, duplication and other FOIA processing activities. No fee would be charged whenever the costs of routine fee collection and check processing would be likely to exceed the amount of the fee itself. Half of all fees collected would be retained by agencies to fund their FOIA operations. In addition, an agency could charge the fair market value for commercially valuable technological information generated or purchased by the Government at substantial cost.

Fee waivers for search and duplication charges would be authorized only when, as under existing law, an agency determines that it is in the public interest to furnish the information. New processing charges would be subject to waiver for various types of public interest groups, providing that the agency determines that the information is not requested for a commercial use.

Time Limits: This section of the marked-up bill retains the 10-working-day time limit provision in existing law, but would allow agencies to take 30-working-day extensions in "unusual circumstances." Similar to the earlier proposals, the new bill would broaden the definition of "unusual circumstances" to include new categories of such circumstances.

The bill retains the provision that a court may grant an agency additional time to process requests when "exceptional circumstances" exist and it contains new language providing that an agency shall not be considered to have violated the Act's time limits unless and until a court rules on the matter.

Exemption 2: Under the bill's broadening of Exemption 2, manuals and instructions to investigators, inspectors. auditors or negotiators would be exempt "to the extent that disclosure could reasonably be expected to jeopardize" their activities. Comparable new protection would apply to examination materials.

Exemption 6: The new bill significantly broadens protection of personal privacy by exempting any "record or information concerning individuals . . . the release of which could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy." The bill also would provide express protection for mailing list-related data.

Exemption 7: Under the marked-up bill, Exemption 7 protections are also significantly enhanced. The threshold language of the exemption would have it apply to "records or information compiled for enforcement purposes" and the subparts would protect such information which: "could reasonably be expected to interfere with enforcement proceedings," under Exemption 7(A); "could reasonably be expected to disclose the identity of a confidential source," including institutional sources, under Exemption 7(D); or "could reasonably be expected to endanger the life or physical safety of any natural person," under Exemption 7(F). The bill would also substantially expand the protection of Exemption 7(E) by having it expressly cover guidelines and procedures for law enforcement investigations and prosecutions.

Organized Crime: The bill also contains a special five-year exclusion for documents generated in investigations of organized crime designated by the Attorney General. The exclusion could be extended for three additional years or even shortened if the agency determined that there was an "overriding public interest" in doing so. In a similar provision, the bill also maintains the subcommittee's special exclusion for informant records when sought by third parties.

Additional Exemptions: The newly marked-up bill provides for two additional exemptions. Similar to the subcommittee version, in new Exemption 10 the bill exempts from disclosure technical data covered by federal export laws. Exemption 11 would exempt from release records or information maintained or originated by the Secret Service in connection with its protective functions.

Proper Requests: The Judiciary Committee bill would establish three distinct limitations on the use of the FOIA. Freedom of Information Act requests could be filed only by United States citizens and aliens lawfully admitted for permanent residence. Use of the Act by felons could be limited or even flatly prohibited by regulations promulgated by the Attorney General. Additionally, the marked-up bill maintains a prohibition on FOIA requests for records available through discovery in ongoing judicial or administrative proceedings.

Business Confidentiality Procedures: S.1730 would establish an administrative scheme by which submitters of business information could be guaranteed full notice and objection rights whenever their data are requested under the FOIA. (Current agency practices are the subject of policy guidance appearing on page 3 and a survey feature appearing on pages 4-5 of this issue of FOIA Update.)

Submitters would be required to designate at the time of submission any information that, in their view, would be exempt as trade secret or confidential business information. With certain limited exceptions, an agency would be required to notify the submitter of the receipt of a FOIA request within 10 working days. A submitter would then have the right to submit written disclosure objections to release of information within 10 days of receipt of such notice.

The bill further requires that when an agency notifies a submitter of a FOIA request, the agency must also notify the requester that the notice provision is in effect. Both submitter and requester would have to be notified of the final agency decision. And the agency would be prohibited from making any disclosure for 10 working days. The agency's action on both the FOIA request and the submitter's objections would be subject to de novo judicial review.

Other Matters: Not included in the bill as marked up by the Judiciary Committee is a new version of Exemption 4, the exact formulation of which has been the subject of great controversy. That issue, together with the special protection of "terrorism-related" records and of settlement information, was reserved for possible consideration on the Senate floor.


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Updated December 9, 2022