First Amendment topicsAbout the First Amendment
2006 FOI update: in Congress
2006 National FOI Day Conference

By Kevin Goldberg

For the first time in recent years, the focus in 2005 was on forward-looking legislation that would make FOIA better, faster and stronger instead of seeking to withdraw records from public access. Rather than seeking to punish journalists, Congress was actually considering granting them a privilege that would allow them to do their jobs unfettered by courts and prosecutors, special or otherwise.

High-profile hearings before the Senate Judiciary Committee gave way to serious talking points and urgent meetings designed simply to preserve the status quo. In the end, the only positive sign was that legislation granting an unprecedented exemption applying to all information and advisory-committee meetings of a proposed new agency within the Department of Health and Human Services would be narrowed. And even the extent of those revisions is uncertain.

A summary of the federal legislation affecting open government follows.

Openness promotes effectiveness
National FOI Day 2005 was met with considerable optimism for the first time in recent memory. That was because of the recent introduction of the Open Government Act (S. 394 and H.R. 867) in each chamber of Congress and the hearing held in the Senate Judiciary Committee’s Subcommittee on Terrorism, Technology and Homeland Security during Sunshine Week.

The bill was introduced by Sens. Cornyn (R-Texas) and Leahy (D-Vt.) in the Senate as S. 394 and by Rep. Lamar Smith (R-Texas) as H.R. 867 in the House.

This bill represents a major step forward. It contains several provisions intended to improve the procedural efficiency of FOIA so that it remains a useful and effective tool in the newsgathering process. These include:

  • A broader definition of the “news media” that does not simply focus on the requester’s employment status when he or she seeks a fee waiver. Instead, the definition is more functional, allowing the agency to grant such status and the accompanying waiver to those requesters who demonstrate intent to distribute information to a wider audience, regardless of affiliation.

  • A change to the rule regarding recovery of attorneys fees when a requester must go to federal court to prosecute a FOIA request that has been denied at the agency level. The bill would reinstate the rule in place prior to the Supreme Court’s 2001 decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Services and would allow litigants to obtain attorneys fees if a substantial part of the records were obtained through court order or settlement.

  • An annual report to track the use of the FOIA exemption for critical infrastructure information that was created in the Homeland Security Act of 2002.

  • Real enforcement mechanism to ensure that agencies do not ignore the statutorily required 20-day deadline for responding to a FOIA request. This has proven to be quite controversial, with agency personnel claiming that it is a lack of resources, not a lack of desire that has led to the backlogs this provision is intended to remedy.

  • Clarification that records that had been given to private contractors for storage and maintenance are still subject to FOIA.

  • An “FOIA Ombudsman” within a new Office of Government Information Services to oversee FOIA and ensure it is administered fairly.

  • A system utilizing telephone or Internet service to enable requestors to track the status of their FOIA requests.

  • Explicit requirement for Congress to cite to 5 U.S.C. Sec. 552 whenever it passes a statute that would create a “(b)(3)” exemption to FOIA, thus ensuring that new exemptions are not themselves passed in secret.

  • Two hearings have been held in Congress on this bill. As noted above, a Senate subcommittee held a hearing on March 15, 2005, during which the following persons testified:

  • Katherine M. "Missy" Cary, assistant attorney general of Texas
  • Walter Mears, former Washington bureau chief and executive editor, Associated Press
  • Mark Tapscott, director, Center for Media and Public Policy, Heritage Foundation
  • Lisa Graves, senior counsel for legislative strategy, American Civil Liberties Union
  • Meredith Fuchs, general counsel, National Security Archive
  • Thomas M. Susman, Ropes & Gray LLP

    The subcommittee on Government Management, Finance and Accountability of the House Government Reform Committee held a hearing on May 11, 2005, titled “Information Policy in the 21st Century — A Review of the Freedom of Information Act.” Though this hearing was more of a general oversight hearing, it did focus specifically on the Open Government Act, as well. Testifying at this hearing:

  • Allen Weinstein, archivist of the United States
  • Carl Nichols, deputy assistant attorney general
  • Linda Koontz, director, information management, U.S. Government Accountability Office
  • Jay Smith, chairman, Newspaper Association of America
  • Ari Schwartz, Center for Democracy and Technology
  • Mark Tapscott, Heritage Foundation

    Momentum behind the Open Government Act slowed as the Senate Judiciary Committee dealt with other issues, including multiple hearings on Supreme Court nominees. Meanwhile, the House continues to look at the bill while also considering alternatives, or at least alternative language with which to amend the bill, that may accomplish the same goals. There are hopes that the House Government Reform Committee or one of its subcommittees will hold a hearing on the legislation in the spring of 2006.

    Executive order on FOIA
    As the Open Government Act was pending, the White House decided to address some of the proposals set forth in that bill, though not in identical language. On Dec. 14, 2005, Executive Order 13392 was issued under the title “Improving Agency Disclosure of Information.”

    The order seeks a “citizen-centered and results-oriented approach” to FOIA that will strengthen compliance with the act. As such, it:

  • Required each agency of the federal government to designate by Jan. 14, 2006, a senior official — someone at the assistant secretary level or its equivalent to serve as the “Chief FOIA Officer” of the agency. That person will have agencywide responsibility for “efficient and appropriate compliance” with FOIA. He or she will monitor FOIA compliance throughout the agency and work in conjunction with agency heads and the attorney general to ensure proper FOIA compliance.

  • Created one or more “FOIA Requester Service Centers” within each agency. These are the point of first contact for FOIA requesters regarding the status of requests and any information about an agency’s response. Each center would have one or more “FOIA Liaisons” who serve as facilitators when requesters have concerns with the way in which a request is being handled. They are supposed to seek to “ensure a service-oriented response to FOIA requests and FOIA-related inquiries.” Though specific methods are not suggested, the FOIA liaison “shall assist, as appropriate, in reducing delays, increasing transparency and understanding the status of requests, and resolving disputes.” No new staff or resources are allotted to create the FOIA Requester Service Centers or the position of FOIA liaison, nor do they appear to have any specific enforcement powers.

  • Mandated that the chief FOIA officer review and evaluate the agency’s implementation and administration of FOIA, with specific emphasis on the agency’s backlog, if any. The chief FOIA officer is to examine the agency’s use of technology in responding to requests and reduce backlogs, as well as creating a system to track all requests filed with the agency. As a result of this study, the chief FOIA officer shall develop an agency-specific plan to improve FOIA implementation over the next two years. The agency-specific plan is to contain concrete milestones and outcomes to be achieved which will allow for evaluation of the agency’s success in improving FOIA compliance.

  • The plan is to be contained in a report submitted by June 14, 2006, to the attorney general and to the director of the Office of Management and Budget; it also must be published on the agency’s Web site or in the Federal Register. Similar plans are to be contained in the agency’s annual FOIA reports for fiscal years 2006 and 2007. Again, there is little enforcement contemplated for agencies that fail to meet their own benchmarks; instead there is a self-reporting requirement that identifies the problem but does not specify any follow-up action.

  • Charged the attorney general with reviewing the agency-specific plans and submitting to the president by Oct. 14, 2006, a report on government-wide FOIA implementation. Further reports are required from the attorney general on June 1, 2007, and June 1, 2008.

    Faster FOIA proposal
    This legislation was a companion to the Open Government Act, which was designed to allow senators an alternative to far-reaching revision of FOIA. Sens. Cornyn and Leahy introduced S. 589 on March 10, 2005, as the Faster FOIA Act. It zipped through the Judiciary Committee, passing on March 17, 2005.

    The Faster FOI Act seeks to establish an advisory commission to study FOIA-processing delays. This commission would be composed of 16 members, who would be appointed by various government officials. The chairman and ranking members of the Senate Judiciary Committee, as well as their equivalents in the House Government Reform Committee, would each get to select three members. Of the three members selected by each of these officials, one would have to have experience in submitting FOIA requests, and another would have experience in the academic fields of library science, information management or access to government information. The commission would be rounded out by one member would selected by the attorney general, one by the comptroller general, one by the director of the Office of Management and Budget, and one by the archivist.

    The committee study would specifically attempt to identify methods of reducing delay in FOIA processing, create an efficient and equitable processing system, and examine whether the charging of fees and granting of waivers needs to be reformed. It would be required to issue a report within one year of the enactment of this authorizing legislation.

    The bill was introduced in the House of Representatives on April 6, 2005, by Reps. Brad Sherman, D-Calif., and Lamar Smith, R-Texas, as H.R. 1620. The May 11, 2005, hearing in a House subcommittee touched on the importance of the Faster FOIA Act to proper FOIA functioning.

    Despite this action in each chamber, the Faster FOIA Act has received a floor vote in neither, most likely because there is no consensus on where to house this commission and its staff; it is currently slated to fall under the purview of the comptroller general’s office.

    A Senate spin-off proposal
    This legislation consists of one section of the Open Government Act that was spun off into its own bill, which was introduced by Sen. Cornyn on June 7, 2005. The section at issue is Section 8 of the Open Government Act, which would require any bill that seeks to exempt information from release under FOIA to specifically cite to 5 U.S.C. Sec. 552 in order for that new exemption to become effective. This will allow those who track FOIA legislation to discover proposed new exemptions that are often inserted as one provision in a much larger, non-FOIA specific, bill. S. 1181 passed the Senate Judiciary Committee on June 9 and even passed the full Senate on June 24. However, House prospects for passage in the House are dim. House members have indicated that they would prefer passing one comprehensive FOIA bill rather than enacting piecemeal legislation.

    Free Flow of Information acts
    As noted in last year’s federal legislative update, bills proposing a federal shield law were introduced by Rep. Mike Pence, R-Ind., in the House of Representatives (H.R. 581) and by Sen. Richard Lugar, R-Ind., in the Senate (S. 340). However, since March 2005, concerns raised by members of Congress and the Department of Justice have resulted in amendment of the original bills.

    The new versions of these bills are H.R. 3323 and S. 1419. They provide a slightly qualified privilege against compelled testimony before any federal judicial, executive or administrative (though not legislative) body regarding the identity of a confidential source or information that would reveal the identity of that source — requiring testimony only when there exists an “imminent and actual” harm to national security. They also provide a qualified privilege against the production of documents to these bodies unless clear and convincing evidence demonstrates that the information cannot be obtained by a reasonable, alternative non-media source and: (1) in a criminal prosecution or investigation, there are reasonable grounds to believe a crime has occurred and the information sought is essential to the prosecution or investigation, or (2) in a civil case, the information is essential to a dispositive issue in a case of substantial importance.

    There is also protection for information about a reporter that is sought from a third party, such as telephone or e-mail records. The bills provide that, in the event that such records are sought, the party seeking the information shall give the covered entity reasonable and timely notice of the request and an opportunity to be heard before the records are disclosed.

    One of the most important, though also most controversial, provisions is the section that defines those persons who receive the laws’ protections. The bills speak in terms of a “covered entity,” which is the publisher of a newspaper, magazine, book journal or other periodical; a radio or television station, network or programming service; or a news agency or wire service, with a broad listing of media such as broadcast, cable, satellite or other means. It also includes any owner or operator of such entity, as well as their employees, contractors or any other person who gathers, edits, photographs, records, prepares or disseminates the news or information.

    A hearing was held in the Senate Judiciary Committee on July 20, 2005. Sens. Christopher Dodd, D-Conn., and Lugar, and Rep. Pence all testified in support of the bill. A separate panel consisting of media lawyers Floyd Abrams and Lee Levine, law professor Geoffrey Stone, columnist William Safire, Time magazine reporter Matthew Cooper and his editor Norman Pearlstine also testified. The most notable absentee was the Department of Justice, which was to be represented by Deputy Attorney General James Comey; he notified the committee on the morning of the hearing that he would not be attending. This occurred after having submitted testimony that was critical of the earlier versions of the Free Flow of Information Act (H.R. 581 and S. 340) — with such criticisms already having been addressed in the amended bills (H.R. 3323 and S. 1419), which were both introduced on July 18, 2005, by the same sponsors as their predecessors.

    The Senate Judiciary Committee held a second hearing on the Free Flow of Information Act on Oct. 19, 2005. Testifying at this hearing:

  • Chuck Rosenberg, United States attorney for the Southern District of Texas
  • Judith Miller, The New York Times
  • David Westin, ABC News
  • Joseph E. diGenova, diGenova & Toensing LLP
  • Anne Gordon, Philadelphia Inquirer
  • Dale Davenport, Harrisburg (Pa.) Patriot-News
  • Steven D. Clymer, Cornell Law School

    Rosenberg elaborated on the Department of Justice’s concerns with the bills. He identified them as: (1) the potential for significant impairment of the government’s law enforcement activities, (2) the creation of inflexible, mandatory standards for subpoenaing reporters, (3) the construction of an impracticably narrow exception to the absolute privilege, (4) an unreasonable burden that must be met by the government before obtaining information in court, (5) an overly broad definition of “covered media” that would allow terrorist organizations such as al-Qaida to take advantage of the bill to hide from U.S. law enforcement officials, and (6) the lack of necessity for the very existence of this legislation, as there is no evidence that the subpoena power is currently being abused by the Department of Justice.

    Restore Open Government Act
    Returning from the 108th Congress is the Restore Open Government Act, introduced once again by Rep. Henry Waxman, D-Calif., on May 12, 2005. This bill goes a little further than the Open Government Act in terms of substantive changes proposed for FOIA and is intended to address many of the key actions taken by the Bush administration that have restricted access to government information. The bill specifically proposes:

  • Revocation of the “Ashcroft Memorandum” of Oct. 12, 2001, which directed heads of government agencies to observe the new standard by which the Department of Justice would defend the denial of a FOIA request in court.

  • Revocation of the “Card Memorandum” of March 12, 2002, relating to safeguarding of information on weapons of mass destruction.

  • Creation by the national archivist of a report on the use of “pseudo-classification” designations for government information (such as Sensitive Security Information, Sensitive Homeland Security Information, Sensitive but Unclassified, etc.). This report would be completed within nine months of the enactment of the act and would include information on:

    1. The names and number of various pseudo-classifications used by government agencies.
    2. Any guidance, instructions, regulations or directives used by the agencies in these areas.
    3. The number of documents categorized by each agency in the past three years.
    4. The number, level and experience of agency personnel authorized to make these designations.
    5. The cost of pseudo-classifying documents.
    6. The extent to which pseudo-classified documents have been released under FOIA.
    7. The extent to which pseudo-classifications have been used to withhold information that is not classified pursuant to an executive order.

  • Promulgation of regulations to ban the use of unnecessary pseudo-classifications.

  • Overturning the Executive Orders issued by George W. Bush on Nov. 1, 2001, and by George H.W. Bush on Jan. 18, 1989, that have restricted access to government information under the Presidential Records Act.

  • Require publication of the names of members of Presidential Interagency Advisory Committees, which can now be kept secret as a result of the United States Supreme Court decision in Cheney v. U.S. District Court for the District of Columbia (2004).
  • Promotion of timely declassification of records.
  • Limiting the broad application of the FOIA exemption contained in the Critical Infrastructure Information Act of 2002.

    The bill was referred to the Committee on Government Reform and the Committee on Homeland Security. Neither has taken action on it.

    Cameras in the courts
    The right of television stations to broadcast federal court proceedings moved forward on the back of legislation introduced in both chambers. This legislation is similar to bills introduced in recent years with two differences: (1) there is a new bill that would allow broadcasting of Supreme Court proceedings in particular; (2) the legislation has actually passed its committee of reference in the House of Representatives, which seemed unlikely as long as James Sensenbrenner, R-Wis., was chair of that committee. In all, four bills have been introduced:

    S. 1768 and H.R. 4380
    S. 1768 was introduced by Sen. Arlen Specter, R-Pa., with the co-sponsorship of six other senators on the Judiciary Committee, on Sept. 26, 2005. H.R. 4380 was introduced by Rep. Ted Poe, R-Texas, on Nov. 17, 2005, and referred to the House Judiciary Committee. The Senate Judiciary Committee discussed the bill during a hearing held on Nov. 9, 2005 (discussed below).

    This legislation would simply permit television coverage of all open sessions of the Supreme Court unless a majority of the Justices voted that televising the proceedings would violate the due process rights of one of the parties to the case.

    Sunshine in the Courtroom Act
    This legislation (S. 829 and H.R. 2422) has been introduced repeatedly in recent Congresses. This year, Sen. Charles Grassley, R-Iowa, introduced it in Senate on April 18, 2005, and Rep. Steve Chabot, R-Ohio., did so in the House on May 18, 2005.

    The bills would authorize the presiding judge of any U.S. Court of Appeals or U.S. District Court to permit the photography or broadcast of court proceedings. There are provisions that would protect the privacy of any witness who does not want his or her face or voice broadcast, allowing them to be obscured at the witness’s request. The bill contains a three-year sunset period.

    A hearing was held in the Senate Judiciary Committee on the issue of televising court trials on Nov. 9, 2005. The hearing was quite extensive and featured testimony from the following witnesses:

    • Panel 1
      Sen. Grassley
      Sen. Charles Schumer, D-N.Y.

    • Panel 2
      Judge Diarmuid O’Scannlain, 9th U.S. Circuit Court of Appeals
      Judge Jan E. DuBois, U.S. District Court, Eastern District of Pennsylvania

    • Panel 3
      Barbara Bergman, president, National Association of Criminal Defense Lawyers
      Peter Irons, professor of political science, University of California at San Diego
      Seth Berlin, partner, Levine Sullivan Koch & Schulz, L.L.P.
      Brian Lamb, founder and chairman, C-SPAN
      Henry Schleiff, chairman and CEO, Court TV Networks
      Barbara Cochran, president, Radio-Television News Directors Association and Foundation

    H.R. 2422 broke new ground when it was added as an amendment to the Secure Access to Justice and Court Protection Act (H.R. 1751) as a means of avoiding being held up in the House Judiciary Committee. That bill passed the House of Representatives 375-45 on Nov. 9, 2005. Interestingly, the White House issued a statement supporting H.R. 1751 generally, but it opposed the sunshine provisions, stating: “While the Administration understands the public interest in viewing trials, the Administration believes Section 22 has the potential to influence court proceedings unduly and to compromise the security of participants in the judicial process."

    Sunshine in Litigation Act
    On June 30, 2005, Sen. Herb Kohl, D-Wis., introduced a bill that is intended to reduce the excessive level of protective orders and sealing of court records that occurs in our federal court system.

    The bill would prevent a federal court from entering any orders that prevent access to information obtained during the course of discovery. More important, it would prevent secrecy provisions of this type that are often inserted into settlement agreements. Two exceptions would allow for such restrictive orders. Both would require that the order be no broader than necessary and prevent the withholding of information that would be necessary to protect public health and safety. In fact, courts are prevented from enforcing confidentiality provisions found in settlement agreements, except that the settlement amount can be kept secret, as can evidence from a case that would endanger public health or safety.

    S. 1348 was referred to the Judiciary Committee, but has received no action there.

    Biodefense and Pandemic Vaccine and Drug Development Act
    This is yet another bill that creates a massive government program that would then be completely excluded from the requirement to comply with FOIA and, in this case, the Federal Advisory Committee Act.

    Sen. Richard Burr, R-N.C., introduced this legislation on Oct. 17, 2005, with the intention of creating a new office within the Department of Health and Human Services. This office, named the Biomedical Advanced Research and Development Agency (BARDA), was intended to counter bioterrorism and pandemic disease. The bill would exempt meetings and information from the Freedom of Information Act and Federal Advisory Committee Act, unless the secretary of Health and Human Services or the director of BARDA decided that release of the information would not harm national security. Decisions would not be subject to judicial review. In other words, it would be as though the agency did not exist at all; such a proposed agencywide exemption apparently is the first in the 40 years of FOIA.

    The bill moved quickly through the Senate Committee on Health, Education, Labor and Pensions, passing on Oct. 18. Despite that unnoticed first step, opposition to the bill mounted quickly and loudly. Thankfully, the bill has not undergone a full Senate vote and, in the meantime, the bill’s drafters have agreed that the FOIA and FACA exemptions are too broad. The bill is being redrafted to provide for specific (b)(3) exemptions that will apply to particular types of records or meetings that may affect national security or particular trade secrets.

    Fairness in Asbestos Injury Resolution Act of 2005
    This is one of those pieces of legislation that spurred Section 8 of the Open Government Act and S. 1181. Introduced on March 17, 2005, by Rep. Mark Kirk, R-Ill., in the House as H.R. 1360 and on April 19, 2005 as S. 852 in the Senate by Sen. Specter, this 100-plus page bill has the following two paragraphs neatly tucked into it:

    “IN GENERAL: Section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act) shall apply to the Office of Asbestos Disease Compensation and the Asbestos Insurers Commission.

    “CONFIDENTIALITY: Any person may designate any record submitted under this section as a confidential commercial or financial record for purposes of section 552 of title 5, United States Code. The Administrator and the Chairman of the Asbestos Insurers Commission shall adopt procedures for designating such records as confidential. Information on reserves and asbestos-related liabilities submitted by any participant for the purpose of the allocation of payments under subtitles A and B of title II shall be deemed to be confidential financial records.”

    Substitute language was offered to Senate Judiciary Committee staff in an attempt to forestall this onerous and overbroad exemption. The need to negotiate the inclusion of that language was mooted as legislators could not reach consensus on the need for the broader program. Hearings were held in the Senate Judiciary Committee late in the first session but the bill has still not moved forward.

    ‘Operational files’ exemption for DIA
    The Defense Intelligence Agency became the fifth agency to receive an exemption from FOIA for its “operational files.” The other four are the Central Intelligence Agency, the National Security Agency, the National Reconnaissance Office and the National Geospatial Intelligence Agency.

    “Operational files” are defined as those that document the conduct of foreign intelligence or counterintelligence operations or intelligence, or security-liaison arrangements or information exchanges with foreign governments, or their intelligence or security services — and those that document the means by which foreign intelligence or counterintelligence is collected through technical systems.

    The DIA had sought this exception in 2000, but it did not pass. The provision was introduced in two separate bills in the 109th Congress: the Fiscal Year 2006 Defense Authorization Act (H.R. 1815, introduced by Rep. Duncan Hunter, R-Calif., on April 26, 2005; S. 1042, introduced by Sen. John Warner, R-Va., on May 17, 2005) and the Fiscal Year Intelligence Authorization Act (S. 1803, introduced by Sen. Pat Roberts, R-Kan., on Sept. 29, 2005). It was eventually passed into law as part of H.R. 1815 (the authorization act), though this FOIA exception will sunset in two years.

    Attempts to amend Patriot Act
    The Freedom to Read Protection Act (H.R. 1157) was introduced by Rep. Bernie Sanders, I-Vt., on March 8, 2005. It was referred to the House Judiciary Committee and the Permanent Select Committee on Intelligence, neither of which has taken any action on the bill despite the fact that there are 130 co-sponsors.

    The Senate version, Library and Bookseller and Personal Record Protection Act (S. 317) was introduced by Senator Russ Feingold, D-Wis., on Feb. 8, 2005 and referred to the Senate Judiciary Committee.

    These bills have been re-introduced from the 108th Congress and would amend the USA Patriot Act provisions that allow the government to obtain a warrant from the Foreign Intelligence Surveillance Court to search for business records. Specifically, they would prohibit the FBI from obtaining a FISA warrant to obtain bookseller or library records related to particular patrons. Both would also impose reporting requirements on the FBI to allow citizens to track the usage of these warrant provisions generally and understand their effect on civil liberties.

    The legislation appeared to pass the House of Representatives in 2004, only to be voted down when Republicans extended the time for a floor vote, which allowed them to collect more votes in opposition to the bill.

    Homeland Security Information Guidance and Training Act
    In response to concerns that “Sensitive Homeland Security Information,” or SHSI, about the way this such information is collected, distributed and handled, Sen. Ken Salazar, D-Colo., introduced S. 888 on April 21, 2005.

    The bill requires that the undersecretary of Homeland Security for information analysis and infrastructure protection establish “best practices” to assist state and local governments in handling and distributing SHSI. It specifically states that these guidelines will not be mandatory and will not preempt any existing state or local laws.

    The bill was referred to the Committee on Homeland Security and the Committee on Government Affairs, neither of which has taken any action.

    National Farm Animal Identification and Records Act
    This legislation has been a mainstay of the past few Congresses and was introduced again on March 10, 2005, by Rep. Collin Peterson, D-Minn. It proposes an amendment to the Animal Health Protection Act to require the establishment of an electronic nationwide livestock-identification system while creating protections to prevent the unauthorized release of information collected under that system.

    In order to accomplish this, H.R. 1254 proposes to exempt information obtained through the new livestock-identification system from disclosure under FOIA. Disclosure would be allowed if the information was related to livestock threatened by disease or pest; or the requester needed the information for public health and safety reasons.

    Disclosure of information would be required if the requester were the person owning or controlling the livestock; the attorney general, if the request was made for the purpose of law enforcement; the secretary of homeland security, if the request was made for the purpose of national security; a court of competent jurisdiction; or the government of a foreign country, if the request was necessary to trace livestock threatened by disease or pests.

    H.R. 1254 was referred to the House Agriculture Committee, which requested executive comment from the Agriculture Department on April 4, 2005. The Agriculture Committee has not taken action on the bill since that date.

    Exemption for photos by medical examiners
    One of the major controversies in recent years has been the accessibility of autopsy records, especially photographs. Many state legislatures have moved to restrict access to these documents. Congress took a first step in that direction on April 6, 2005, with the introduction of H.R. 1513 by Rep. Rodney Freylinghuysen, R-N.J. Referred to the Government Reform Committee, this bill actually would create a 10th exemption to FOIA that covers:

    "copies, reproductions, or facsimiles of any photograph, negative, or print, including instant photographs and videotapes, of the body, or any portion of the body, of a deceased person, taken by or for a medical examiner at the scene of the person's death or in the course of a post mortem examination or autopsy of the person made by or caused to be made by a medical examiner."

    No action has been taken on the bill since its introduction.

    Anti-Terrorism and Port Security Act
    Introduced on Jan. 4, 2005, by Rep. Juanita Millender-McDonald, D-Calif., it has been referred to the Homeland Security, Judiciary, Transportation and Infrastructure, and Ways and Means Committees.

    The bill vests considerable power in the "captain of the port" at a U.S. seaport — simply a person designated as such by the commandant of the Coast Guard for any given seaport. The captain has authority for coordinating security, including protecting sensitive information related to the seaport. Of course, “sensitive information” is defined very broadly to include not only all maps of the seaport and all blueprints of structures located within the seaport, but also “any other information related to the security of the seaport that the Captain-of-the-Port determines is appropriate to secure and protect.”

    The bill has received no action from any committee.

    Private Prison Information Act
    One of the major thorns in the side of access advocates is the constant outsourcing of government records to private entities, which then claim they are not subject to FOIA. This trend is not limited to the repositories holding records and information. The government continues to outsource functions of all types, such as prisons.

    Apparently fed up with the inability of citizens to get adequate information from private prisons, Rep. Ted Strickland, D-Ohio, introduced the Private Prison Information Act on April 21, 2005. It is unfortunate that this bill has not received any attention from the House Judiciary Committee, as one of the few FOIA bills that would increase access. It simply says:

    "Each non-governmental entity contracting with the Federal Government to provide a prison or other correctional facility, shall have the same duty to release information about the operation of that prison or facility as a Government owned and run prison or correctional facility has under section 552 of title 5, United States Code, commonly called the Freedom of Information Act. Any party aggrieved by a violation of that duty may, in a civil action, obtain appropriate relief against that entity or any other proper party."

    S. 384 and H.R. 842
    In 2000, legislation was passed to provide access to U.S. government records concerning the World War II-era Japanese Imperial Government and concerning Nazi war crimes. That legislation became effective in March 2001 and was originally intended to sunset after four years. S. 384, introduced on Feb. 15, 2005, by Sen. Mike DeWine, R-Ohio, and H.R. 842, introduced the next day by Rep. Carolyn Maloney, D-N.Y., extended this deadline by two years. The bill rushed through Congress, passing the Senate on Feb. 16, 2005, the House Government Reform Committee on March 10, 2005, and the full House on March 14, 2005. It was signed into law on March 25, 2005.

    General privacy legislation
    As usual, several bills were introduced that would protect a right to “personal privacy” generally. They have not received action from the committees of reference, nor are they expected to. These bills are:

    Social Security Online Privacy Protection Act (H.R. 82)
    Introduced by Rep. Frelinghuysen on Jan. 4, 2005, this bill would regulate the use by interactive computer services of their users’ personally identifiable information. It was referred to the Committee on Energy and Commerce.

    Wireless Privacy Protection Act of 2005 (S. 1350 and H.R. 83)
    The House version was introduced by Rep. Frelinghuysen on Jan. 4, 2005, and was referred to the Committee on Energy and Commerce. The Senate version was not introduced until June 30, 2005, by Sen. Specter. It was referred to the Committee on Commerce, Science and Transportation. The bill seeks to require customer consent prior to the disclosure of that customer’s wireless call location information.

    Online Privacy Protection Act of 2005 (H.R. 84)
    Rep. Frelinghuysen introduced this bill as well, also on Jan. 4, 2005. It was also referred to the Energy and Commerce Committee. H.R. 84 would require the Federal Trade Commission to prescribe regulations protecting the privacy of personal information collected from Internet users in much the same way that the Child Online Privacy Protection Act currently protects Internet users under the age of 13. However, these regulations would apply to all Internet users, not just children.

    Wireless 411 Privacy Protection Act (H.R. 1139)
    Rep. Joseph Pitts, R-Pa., introduced this bill on March 7, 2005. It would protect the privacy rights of wireless subscribers by preventing wireless companies from including their subscribers’ numbers in any wireless directory unless the provider gives notice to all subscribers that this will occur and gets express authorization from each subscriber. The bill was referred to the Energy and Commerce Committee.

    Consumer Privacy Protection Act (H.R. 1263)
    Introduced by Rep. Cliff Stearns, R-Fla., on March 22, 2005, and referred to the Energy and Commerce Committee, H.R. 1263 seeks to protect and enhance consumer privacy by requiring organizations collecting personal information from consumers to have privacy-protection policies in place and to notify consumers of those policies and of the fact that personal information is being collected.

    E-Mail Privacy Protection Act (H.R. 3503)
    Rep. Chris Cannon, R-Utah, introduced this bill on July 28, 2005. It was referred to the Committee on the Judiciary. The bill amends wiretap provisions to apply to stored electronic e-mails.

    Privacy Act of 2005 (S. 116)
    The bill was referred to the Judiciary Committee after it was introduced on Jan. 24, 2005, by Sen. Dianne Feinstein, D-Calif. It gives authority to the Federal Trade Commission to prevent the sale of personally identifiable information by commercial entities to third parties unless the subject of the information is first notified and offered the opportunity to prevent the disclosure. Of particular note to participants in the National FOI Day proceedings, the bill would expand the definition of “personal information” contained in the DPPA — Drivers Privacy Protection Act — to include an individual’s photograph or a photocopy of his or her driver’s license in the types of information that cannot be released under the DPPA.

    Kevin M. Goldberg serves as counsel to the American Society of Newspaper Editors and is a partner at Cohn & Marks.

  • Related

    Cornyn says government should fulfill records requests faster

    'This is legislation that benefits all of the American people and is absolutely critical to our form of government,' senator tells Texas press group. 03.22.06

    Bill to speed FOI requests advances in Senate
    Judiciary Committee approves measure to close gaps, hasten release of government information. 09.22.06

    2006 FOI update: in the courts
    Report on court rulings on access cases in 2005 for the '06 National FOI Day conference. 03.08.06

    National FOI Day

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