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FOIA Update: Senate "Electronic" FOIA Hearing Held

FOIA Update
Vol. XIII, No. 2

Senate "Electronic" FOIA Hearing Held

The subject of "electronic record" issues under the Freedom of Information Act has received further legislative attention in a Senate hearing held on an "electronic" FOIA bill.

S. 1940 -- Proposed Legislation

On April 30, the Senate Judiciary Committee's Subcommittee on Technology and the Law, chaired by Senator Patrick J. Leahy (D. Vt.), held a hearing on S. 1940, the "Electronic Freedom of Information Improvement Act of 1991."

That proposed legislation, which was introduced last November by Senator Leahy and Senator Hank Brown (R. Colo.), contains provisions addressing both "electronic record" FOIA issues and matters relating to time limits and administrative backlogs under the Act. See FOIA Update, Fall 1991, at 1, 5-7.

The hearing began with testimony from the Department of Justice, based upon the Department's governmentwide survey and report on "electronic record" FOIA issues. Testifying on behalf of the Justice Department was Dr. Steven R. Schlesinger, Director of the Justice Department's Office of Policy Development and also Deputy Director of the Department's new Office of Policy and Communications, of which the Office of Information and Privacy now is a part. Dr. Schlesinger was accompanied by OIP Co-Director Daniel J. Metcalfe, who also spoke on the Department's behalf.

Also testifying at the hearing were representatives of the American Bar Association, the American Foundation for the Blind, the Vermont State Department of Libraries and a variety of media organizations, all of whom were supportive of S. 1940.

Practical Agency Concerns

The Justice Department expressed a range of serious concerns with S. 1940 and stated that it could not support the bill in its present form. It observed that S. 1940's "electronic record" provisions did not seem to take into consideration the practicalities of administering the FOIA in an "electronic" environment, as set forth in the responses of federal agencies to the Department's "electronic record" survey, and that they warranted a process of full deliberation.

Emphasizing the importance and far-reaching significance of remedial legislation in this area, the Justice Department urged the Subcommittee to assess the practical impact and workability of S. 1940's provisions with all federal agencies before proceeding further with the bill. (See pp. 3-10 of this issue of FOIA Update for the text of the Department's testimony, which also addressed the subject of FOIA time limits and backlogs.)

Consideration of Agency Concerns

On behalf of the Subcommittee, Senator Leahy indicated receptivity to the Justice Department's suggested approach to S.1940. Senator Brown, in his hearing statement, also assured federal agencies that the Subcommittee "will give full consideration to their concerns with the practicalities" of all issues addressed in the bill.

It is anticipated that the Subcommittee will work together with the Justice Department and with all concerned federal agencies during the coming months, as well as with other interested parties, in a cooperative effort to focus upon individual agency concerns and to seek practical solutions to such issues.

No action currently is anticipated on a companion bill also introduced in the Senate last November, S. 1939, which addresses a number of substantive FOIA provisions. See FOIA Update, Fall 1991, at 3-5.

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Updated August 13, 2014