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FOIA Update: Senate Committee Approves FOIA Bill

FOIA Update
Vol. IV, No. 3

Senate Committee Approves FOIA Bill

On June 16, the Senate Judiciary Committee unanimously approved S. 774, the Freedom of Information Act reform bill supported by the Administration.

The Judiciary Committee's action followed the approval of S. 774 by its Subcommittee on the Constitution, which had marked up the bill with only slight revision on May 13. Approval by the full Judiciary Committee was delayed for several weeks due to the committee's inability to muster a quorum in late May and early June.

Now S. 774 is expected to reach the Senate floor soon, possibly before Congress takes its summer recess in early August. Full Senate approval should be relatively noncontroversial, although S. 774's chief proponents, Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.), have agreed to a close examination of the new technical data exemption on the Senate floor.

Once S. 774 is passed by the Senate, it should receive prompt consideration in the House by the Government Information, Justice and Agriculture Subcommittee, which is chaired by Rep. Glenn English (D-Okla.), who has indicated that he will act on FOIA reform once the Senate passes its bill.

As marked up in subcommittee, S. 774 contains all of the provisions of last year's broad amendment package, plus three small additions. Added to Exemption 7(C) is the phrase "could reasonably be expected to," to provide the same new breadth of protection there as in other law enforcement exemptions. Additionally, S. 774 now contains two procedural provisions sought by Sen. Leahy -- one requiring publication in the Federal Register of all Exemption 3 statutes, the other barring the bill's new fee retention provision to any agency found not to be in "substantial compliance" with the new expanded time limit provisions.

S. 774, as approved by the Senate Judiciary Committee, would make comprehensive changes in the FOIA. including the following:

Fees and Waivers -- The bill would authorize OMB to issue government-wide guidelines for uniform fee schedules to be adopted by each agency. For the first time, agencies would be allowed to charge for "all costs reasonably and directly attributable" to the work involved in responding to a FOIA request, except for time spent in resolving overall questions of law or policy. S. 774 would also add a provision authorizing agencies to charge fair market value for commercially valuable technological information. Half of all fees collected would be retained by agencies to fund their FOIA operations, except that an agency would not be allowed to retain fees if determined by GAO or OMB not to be in "substantial compliance" with the bill's new time limits.

Fee waivers for search and duplication charges would be authorized only when, as under existing law, an agency determines that it is primarily 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 sought for a commercial use.

Time Limits -- The 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," and it broadens the definition of that term to include new categories of such circumstances. The bill also retains the existing provision that an agency may have 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 a court specifically so rules.

Exemption 2 -- Under S. 774, Exemption 2 would be broadened to protect manuals and instructions to investigators, inspectors, auditors or, negotiators "to the extent that disclosure ... could reasonably he expected to jeopardize" their activities. Comparable new protection would apply to examination materials.

Exemption 6 -- The bill would enhance personal privacy protection 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." It would also provide express protection for mailing list-related data.

Exemption 7 -- S. 774 would expand law enforcement protection by broadening the threshold language of Exemption 7 and by substituting the phrase "could reasonably be expected to" in Exemptions 7(A), 7(C), 7(D) and 7(F). It would also expand the protection of Exemption 7(E), would provide express protection for institutional sources, and would create an exclusion for informant records sought by third parties.

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 shortened) if it is determined that there is an "overriding public interest" in doing so.

Additional Exemptions -- S. 774 would create two additional exemptions: Exemption 10 would protect all technical data covered by federal export laws. Exemption 11 would exempt records or information maintained or originated by the Secret Service in connection with its protective functions.

Proper Requests -- Under S. 774, there would be three new limitations on the use of the Act. FOIA requests could be filed only by United States citizens and aliens lawfully admitted for permanent residence. Use of the Act by felons would be subject to limitations established by regulations promulgated by the Attorney General. There would also be a prohibition on FOIA requests for records available through discovery in ongoing judicial or administrative proceedings.

Business Confidentiality Procedures -- S. 774 would establish a comprehensive administrative scheme under which submitters of business information would be guaranteed full notice and objection rights whenever their information is requested under the FOIA. While the proper current practice is to accord these rights to business submitters (see FOIA Update, June 1982, at 3), S. 774 would codify such procedures. It would also provide, contrary to existing case law, for de novo review in "reverse" FOIA lawsuits challenging agency decisions to disclose such data.

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In another legislative development, the Senate Select Committee on Intelligence held two days of hearings in late June on S. 1324, a bill that would amend the National Security Act of 1947 to extend categorical nondisclosure protection to CIA operational files. Introduced by Sen. Barry Goldwater (R-Ariz.), S. 1324 does not overlap S. 774 and is following an independent course. Its prospects for enactment are as yet unclear.

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Updated August 13, 2014