Senate passes bill to improve federal Freedom of Information Act; prospects for final passage good

The first Freedom of Information Act reform in 11 years passed the Senate without dissent Friday night after being held up for two months by Sen. Jon Kyl, R-Ariz. Among other reforms, the bill would create an obmudsman to resolve disputes about records requests, some of which have lingered for years because there is no penalty for failing to meet the law's deadlines for response.

The bill would also create a tracking system and hotline allowing requesters to follow their request through the system, and ensure that those who sue to get records will be get reimbursed for attorney fees when a federal agency hands over records right before a court order that might have included a fee award. It is called the Openness Promotes Effectiveness in our National Government Act, or OPEN Government Act. It is promoted by the Sunshine in Government Initiative, a coalition of media groups.

The voice vote by unanimous consent came after a series of negotiations between Kyl’s staff and that of the sponsors, Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Tex., reports Pete Weitzel of the Coalition of Journalists for Open Government. Kyl and the Justice Department "objected to the definition of the media for fee waiver purposes, to a measure restoring the recovery of attorneys fees (changed by a 2001 court ruling), to the penalty provision if an agency fails to meet the 20-day response time, to the creation of an ombudsman, and to a section calling for reporting on Critical Infrastructure Information," Weitzel reports.

"The compromise made changes to the first three in ways we do not believe harmful," Weitzel writes. "The penalty provision was changed to match that in the House bill, which we thought more practical. The ombudsman provision, as negotiated, primarily adds language to the Leahy-Cornyn bill that puts into statute the requirement that each agency have a chief FOIA officer and a public liaison. Those were established by presidential executive order last year. The CII section is not really related to FOIA reform but is something Sen. Leahy felt strongly about. It is not in the House bill and we did not object to its being dropped."

Weitzel says the best scenario for supporters of freedom of information is for the House to accept the Senate version. If not, a House-Senate conference committee will be required. "Either way, we believe we’ll see the bill going to the president soon." For Weitzel's detailed analysis of the changes, click here.