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Publication date: Feb. 11, 2005

SEN. CORNYN PLANS BILL TO FIX SOME FOIA FLAWS

Some help may be on the way for reporters having trouble getting information from government. Sen. John Cornyn (D-TX) is expected soon to introduce a bill that would help shore up the besieged Freedom of Information Act (FOIA).

The bill is seen as having serious prospects for enactment partly because of its modest ambitions, and partly because of special synergy from the bipartisan coalition Cornyn seems to be forging between conservative libertarians and open-government liberals in support of it.

Its main sponsor, Cornyn, has credibility with conservatives and clout within the administration. He is a friend of Alberto Gonzales and a key sponsor of Gonzales' nomination to be Attorney General (the Justice Department administers FOIA government-wide). Moreover, he has already extracted from Gonzales a promise (albeit a vague one) to revisit the restrictive FOIA interpretations of his predecessor John Ashcroft. Cornyn is a conservative on many social issues, but won a reputation as an open-government advocate during his term in the Texas attorney general's office.

Cornyn chairs the subcommittee of the Senate Judiciary Committee which would have jurisdiction over the bill - which almost guarantees he can get it on the agenda and through subcommittee.

The bill also seems certain to start off with significant support from the Democrat side of the aisle - which in recent years had largely despaired of moving any "Fix FOIA" bill at all. Many of the major journalism groups (operating as the Coalition of Journalists for Open Government), as well as SEJ, also seem inclined to support it. All sides have been sounded out in the behind-the-scene discussions that went into the bill's drafting. Their final positions may not be clear until a final bill text has been formally introduced. The ranking Democrat on the full Judiciary Committee, Patrick J. Leahy (VT), and the ranking Democrat on the subcommittee, Russell D. Feingold (WI), have both been 1st Amendment champions.

Fix-FOIA bills in the now-adjourned 108th Congress went nowhere; none even got a hearing. One, sponsored by Leahy, would have reined in the "Critical Infrastructure Information" (CII) provisions in the 2002 Homeland Security Act. Another, by ranking House Government Reform Democrat Henry Waxman (CA), would have overturned the 2001 "Ashcroft memo" instructing agencies to disclose no more than they were legally obligated to.

Cornyn's bill seems more realistic because it does not confront head-on any of the FOI policies the Bush administration has staked major prestige on. Nor does it directly challenge any of the restrictive Bush FOI policies based on national security or homeland security concerns. Instead it tinkers with technical and procedural issues - and brightens the spotlight of public information regarding actual FOIA performance.

One wildcard in the bill is its establishment of the Administrative Conference of the U.S. as ombudsman agency overseeing FOIA implementation government-wide. Congress put the ACUS out of business by zero-funding it in 1995 - but in 2004 reauthorized it for 3 years. While the ACUS could act as a protector of FOIA, its own existence may be precarious.

Major provisions of the draft Cornyn bill would:

  • Close a loophole created by outsourcing of agency record-keeping functions. When the General Services Administration recently outsourced its record-keeping on federal contracts, questions arose as to whether records would be subject to FOIA once they were in the hands of private contractors. The bill makes clear that they are still subject to FOIA. (Previous Stories: TipSheets of June 2, 2004, and Aug. 11, 2004.
  • Require "Open Government Impact Statements" to prevent future FOIA loopholes. In recent years a growing number of FOIA exemptions have been created by Congress without hearings, votes, or much public notice. The bill would require Congress to specifically declare when and how any measure it passes would affect public access to information under FOIA.
  • Monitor the use of "Critical Infrastructure" Exemptions. The Homeland Security Act of 2002 exempted from FOIA information submitted by companies to the Dept. of Homeland Security about vulnerabilities of "critical infrastructure." While the intent was to help DHS know what facilities might need protecting from potential terrorist attacks, critics worried that the provision could be used by companies to hide information the public should know about. The bill requires the nonpartisan Government Accountability Office (GAO) to audit and report on use - or possible abuse - of the provision. Previous Stories: WatchDogs of Nov. 3, 2004, and May 19, 2004.
  • Protect fee waivers for journalists regardless of institutional ties. Most FOIA requesters are charged fees not only for copying costs, but also for the work agencies must do when they search for and review requested government records. Legitimate journalists qualify for waiver of the search-and-review fees. The Justice Dept. and federal agencies in recent years have made those waivers harder to get. The bill declares that agencies shall not deny someone status as a "representative of the news media" solely because they are not employees of a mainstream news organization. The provision would help freelancers, book authors, and journalists working for magazines, TV, radio, and new media. Agencies could, however, consider the requestor's publication history.
  • Require agencies to tally which FOIA requests were "first person" info. Agencies must report annually on their FOIA performance (how many requests received, how many granted, etc.). Critics have charged that agencies can distort the statistics to make themselves appear more open than they really are by counting people's requests for government records about themselves in the same way as other FOIA requests. The DHS, for example, counts people's requests for information about whether their property lies in a flood plain as FOIA requests. The bill would require agencies to distinguish between "first person" information requests and other requests when the agencies do their annual FOIA reporting.
  • Set up a FOIA hotline to track the status of requests. The bill requires agencies to give each FOIA requestor a tracking number within 10 days and to set up a FOIA telephone hotline or internet service that requestors can use to find out the status of their request and the estimated date of agency action. This method worked in Texas, where Cornyn implemented it as Attorney General, to speed response.
  • Establish a FOIA ombudsman to avoid the need for litigation. The bill would set up an "ombudsman" office to oversee agencies' FOIA performance and procedures and to mediate disputes. The bill's author believes this would cut down on litigation. The ombud would be a new Office of Government Information Services within the Administrative Conference of the United States (ACUS). The ACUS is an independent "good government" agency regarded well by some conservatives, including Supreme Court Justice Antonin Scalia, who once headed it.
  • Make it easier for FOIA plaintiffs to recover attorneys' fees. Current law allows people who have to go to court to force agencies to produce FOIA information to recover their legal fees if they "substantially prevail." A recent court case, Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, threw that doctrine in doubt. In Buckhannon, a court held that if a recalcitrant agency gave in and settled a case at the last minute before trial, plaintiffs could not recover costs. The bill would prevent that decision from applying to FOIA plaintiffs and allow them to recover the costs of taking the agency to court.
  • Start the 20-day deadline clock immediately. Current FOIA law requires agencies to take action of some kind on a FOIA request within 20 business days of receiving it. However, with the encouragement of former Attorney General Ashcroft, some agencies have begun refusing to start the 20-day clock until all fee issues are resolved - which can extend the deadline for a long time. The Environmental Protection Agency has been front and center among agencies taking this approach. The Cornyn bill would make it clear that the 20-day clock starts immediately upon receipt of a FOIA request unless the requestor agrees otherwise. Previous Story: WatchDog of Jan. 12, 2005.
  • Increase penalties on agencies for missing the 20-day deadline. Under current law, the only consequence an agency faces when it misses the 20-day deadline is a possibility of court action. When an agency misses the deadline, requestors are presumed to have exhausted administrative remedies and allowed to file suit - something only a fraction of requestors can afford to do. Following a Texas model, Cornyn's bill would penalize agencies failing to meet the deadline by waiving many of the exemptions they could use to withhold the information. The penalty would not apply in cases where disclosure would harm national security, intrude upon personal privacy, or disclose proprietary information; where it is otherwise prohibited by law; or where the agency can show that it had good cause to miss the deadline.
  • Encourage the Special Counsel to discipline agency officials who arbitrarily and capriciously deny disclosure. A little-known provision of the current FOIA - providing for disciplinary action against agency officials who withhold records unreasonably - has reportedly never been used. The Office of Special Counsel (whose major responsibilities include protecting whistle-blowers) is responsible for enforcing this provision. The Cornyn bill would require the Attorney General to notify the OSC of any court decision suggesting the arbitrary or capricious denial of a FOIA request. It also requires the Attorney General to report to Congress annually all such court findings and the OSC to report annually on its response to them.
  • Strengthen reporting requirements to make poor performance more discernible. The 1974 amendments to FOIA required all agencies to report on their compliance. But current law only requires agencies to report median wait times - which allows some bad apples to hide especially poor performance. One watchdog group recently found agencies with pending requests as old as 17 years. The Cornyn bill would require reporting of the 10 oldest requests pending at each agency and require reporting of the average and range of response times, as well as the median.
  • Strengthen reporting on fee status determinations. The bill would also require agencies, in their annual FOIA reports, to calculate all response times from the date of original filing (rather than from date of fee status determination or some other date). It would also require statistics on the number of fee status requests that are granted and denied, and the response time for adjudicating fee status determinations.
  • Encourage FOIA as a career track for civil servants. The bill requires the Office of Personnel Management to study various federal personnel policies looking for ways to encourage professional commitment to FOIA performance.
  • Require FOIA awareness training. The bill also requires OPM to study and report within one year on whether some federal employees should undertake FOIA awareness training.
  • Ascertain funding levels needed to ensure adequate FOIA compliance. The bill requires the ACUS ombud-agency to report to Congress and the President whether federal agencies are receiving and spending enough funds to ensure FOIA compliance.
  • Effective date. The bill would take effect one year after enactment.


Last revised January 22, 2013

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