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FOIA Update: Senate Passes Extensive FOIA Reform Legislation

FOIA Update
Vol. V, No. 1

Senate Passes Extensive FOIA Reform Legislation

After hearings and protracted deliberations extending over two sessions of Congress, the Senate on February 27 unanimously passed S. 774, the comprehensive package of FOIA reform amendments supported by the Administration.

Full Senate approval of S. 774 had been expected last year, based upon the bipartisan efforts of Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.), but was delayed for several months as a result of concerns (primarily regarding national security issues) raised by Senator David Durenberger (R-Minn.). Ultimately, however, the bill cleared the Senate with relatively little controversy after Senator Hatch agreed to schedule a hearing on April 3 before his Constitution Subcommittee of the Judiciary Committee addressing such concerns.

S. 774 now moves to the House of Representatives, where Government Information, Justice and Agriculture Subcommittee Chairman Glenn English (D-Okla.) has awaited final Senate action for more than two years before considering FOIA reform. In a statement issued on the day following Senate passage, Chairman English promised to schedule hearings on S. 774 very soon, but suggested that further House action on the bill should not necessarily be expected this year.

In other action on a separate FOIA proposal, the Senate on December 14 passed S. 1324, a bill aimed at providing the CIA with a categorical FOIA exclusion for certain of its operational files. This bill was jointly referred to the House Permanent Select Committee on Intelligence and to Chairman English's subcommittee of the Government Operations Committee. Its progress through the House cannot yet be predicted.

Also before Chairman English's subcommittee in the House is a bill that would preclude the Justice Department's argument to the Supreme Court (see "Supreme Court Update" on p. 9 of this issue of FOIA Update) that the Privacy Act of 1974 can serve as an Exemption 3 statute under the FOIA. Introduced on January 31 by Chairman English and several other congressmen, H.R. 4696 would amend subsection (q) of the Privacy Act, 5 U.S.C. § 552a(q), to achieve its objective.

For a description of the provisions of S. 774 as approved by the full Senate, see the Summer 1983 issue of FOIA Update at pp. 1-2. The only modifications to S. 774 made upon final Senate passage were the removal of the proposed technological data exemption, in light of the special Exemption 3 protection for such data obtained by the Defense Department in its authorization bill last year (see 10 U.S.C. § 140c), and the deletion of the term "royalty" from section 2 of the bill.


New Feature

In this issue, FOIA Update inaugurates a new recurring feature, "Under Advisement" (page 9), which will point out pending litigation cases in which FOIA issues of particular significance are expected to be decided in the near future.


Inside Update

OIP Guidance:  Congressional Access Under the FOIA

FOIA Counselor:  The Unique Protection of Exemption 2

Index to FOIA Update, Vols. I-IV

Go to: FOIA Update Home Page

Updated August 13, 2014