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2005 FOI update: federal legislation
2005 National FOI Day Conference

By Kevin Goldberg

If there is one overarching theme relevant to freedom of information in 2004, it is the lack of activity on Capitol Hill with regard to the legislation that was introduced with such fanfare in 2003 and early 2004. Among the bills that fall into the category of “dead by the 2nd Session”:

  • S. 609 and H.R. 2526 (Restoration of Freedom of Information Act)
  • S. 720 and H.R. 663 (Patient Safety and Quality Improvement Act)
  • H.R. 2275 (People’s Right to Know Act)
  • S. 554 and H.R. 2155 (which sought to allow cameras into federal courtrooms)
  • S. 817 (Sunshine in Litigation Act)
  • S. Res. 54 and H.R. 3630 (Congressional Research Accountability Act)
  • H.R. 3524 (Human Rights Information Act)
  • S. 745, H.R. 69, H.R. 70, H.R. 1931 (all related to the protection of personal privacy online)

    Despite these casualties, Congress did take some action on FOI-related legislation in 2004. Although only a handful of bills were introduced or acted upon during the year, some are noteworthy for their potential impact on FOIA, even though they were introduced too late in the legislative session to effect actual change.

    But the forecast for the current session of Congress is a lot more sunshine.

    The 109th Congress has started strong. Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., have introduced the Open Government Act of 2005 as S. 394 in February.

    Also introduced by Rep. Lamar Smith, R-Texas, in the House as H.R. 867, this bill proposes the first major amendments to FOIA in nearly a decade and is intended to ensure that FOIA works as smoothly in practice as it is intended to in theory.

    Sens. Cornyn and Leahy also seek increased oversight through the Faster FOIA Act (S. 589) introduced on March 10. It seeks to create a commission to recommend improvements in the processing of FOIA requests.

    In addition, there have been three bills introduced that would provide statutory protection for reporters who are subpoenaed to testify in federal court.

    108th CONGRESS, 2nd SESSION (2004)

    Restore Open Government Act of 2004
    In September, Rep. Henry Waxman, D-Calif., the ranking minority member of the House Government Reform Committee, issued a strongly-worded report titled “Secrecy in the Bush Administration.” On Sept. 14, 2004, he introduced legislation intended to build on the findings of this report.

    The reports starts bluntly, stating, “Open and accountable government is one of the bedrock principles of our democracy. Yet virtually since inauguration day, questions have been raised about the Bush Administration’s commitment to this principle. News articles and reports by independent groups over the last four years have identified a growing series of instances where the Administration has sought to operate without public or congressional scrutiny.” Then it cuts deeper, finding that “there has been a consistent pattern in the administration’s actions: laws that are designed to promote public access to information have been undermined, while laws that authorize the government to withhold information or to operate in secret have repeatedly been expanded. The cumulative result is an unprecedented assault on the principle of open government.”

    The report dissects how that the Bush Administration has chipped away at laws that provide public access to federal records, citing changes to the Freedom of Information Act in three major areas:

    1. reversing a presumption of disclosure in favor of instructing agencies to withhold “sensitive information.”
    2. withholding a wide range of economic, health and critical infrastructure information.
    3. using administrative tactics such as denials of fee waivers and delays in responses to effectively deny FOIA requests.

    The report also references the executive order that blocks the release of large amounts of records under the Presidential Records Act. Finally, the report discusses the increased secrecy under which federal advisory committees are permitted to act.

    There is also a study of the increase in affirmative use of laws that allow withholding of records, particularly by taking greater advantage of the ability to classify records.

    The report discusses the Bush Administration’s tactics that include reversing the previously held presumption against classification, expanding the authority to classify documents and the time for which they remain classified, and reducing the instances in which documents are automatically declassified.

    Specifically, the report finds that in fiscal years 2001 to 2003, the average number of original decisions to classify information increased by 50% over the previous five years. In the last year alone, the total number of classification decisions increased by 25%.

    The Administration has also taken greater advantage of previously little-used provisions that allow information to be withheld from the public through a designation of that information as “sensitive security information,” as well as using the USA Patriot Act to conduct investigations in secret, which are then followed by an increasing number of secret detentions, trials and deportations, according to the report.

    Congressional access to executive branch records has also been diminished. The Bush Administration challenged the long history of the Government Accounting Office’s access to federal records on constitutional grounds. It similarly challenged the “seven-member rule” which requires an executive branch agency to provide information on matters within the jurisdiction of a congressional committee upon request of any seven members of that committee.

    Finally, the report states, the Administration has refused to accommodate requests from Members of Congress for various government documents. The report states that “On over 100 separate occasions, the Administration has refused to answer the inquiries of, or provide the information requested by, Rep. Waxman, the ranking member of the House Committee on Government Reform.”

    “Taken together,” the report concludes, “the actions of the Bush Administration have resulted in an extraordinary expansion of government secrecy. External watchdogs, including Congress, the media, and nongovernmental organizations, have consistently been hindered in their ability to monitor government activities. These actions have serious implications for the nature of our government. When government operates in secret, the ability of the public to hold the government accountable is imperiled.”

    In conjunction with the report, Rep. Waxman introduced H.R. 5073, which sought to effect six major changes to the current state of access to government information, many of which have been sought for several months. These included:

  • Enacting into law the “Restore FOIA Act” that sought to reinstate the “compromise language” which was to be passed into law as the Critical Infrastructure Information Act of 2002 but at the last minute was passed over for much more stringent language.
  • Overturning both the “Ashcroft Memo” and “Card Memo” stating Administration policy on FOIA, in favor of a standard used by Attorney General Janet Reno, who said the Department of Justice would only defend a FOIA denial in federal court if foreseeable harm was likely to result from disclosure of the records at issue.
  • Overturning President Bush’s Executive Order relating to presidential records in favor of the previous standard enunciated by President Reagan.
  • Overturning the Supreme Court’s ruling that the records of the energy task force headed by Vice President Cheney are not subject to disclosure via the Federal Advisory Committee Act.
  • Reducing excessive classification of information by creating more congressional oversight of the classification process.
  • Refining the concept of “fee shifting” in FOIA litigation to allow a plaintiff seeking records from a federal agency a greater opportunity of recovering attorneys fees upon receiving the records by providing such fees even if the case was not officially resolved through a court order, as long as the commencement of litigation provided the substantial impetus for release of the records.

    Safe, Accountable, Flexible and Efficient (SAFE) Transportation Act
    The "Safe, Accountable, Flexible and Efficient (SAFE) Act of 2004" (S. 1072 and H.R. 3550) authorized funds for federal highways, highway safety programs and transit programs. The Senate version of the bill contained two provisions dealing with the ability of the public to access information related to transportation safety, facilities and infrastructure through FOIA, both of which would have greatly affected the ability of the press and public to participate in homeland security.

    Neither was in the House bill, but both were expected to be included in any final bill sent to the President for signature. Fortunately, in the end, the SAFE Act was not voted on by Congress, which could not resolve the differences in the many policy-based provisions of these bills. Instead, Congress passed a “continuing resolution” to allow for continued funding of highway programs for another year.

    Section 3029, introduced by Sen. James Inhofe, R-Okla., existed in the Senate version, but not the House version, of this legislation. It sought to expand the definition of "sensitive security information" ("SSI") that could be withheld from public access through FOIA. Currently, SSI is defined as information that would:

  • Be an unwarranted invasion of personal privacy.
  • Reveal a trade secret or privileged or confidential commercial or financial information.
  • Be detrimental to the safety of passengers in transportation.

    Section 3029 would have added the following to the italicized language:

    , transportation facilities or infrastructure, or transportation employees.

    The definition of SSI would become so broad as to allow the Transportation Security Administration to withhold virtually any record in its possession as SSI. It would be impossible to learn the reasons for any major action by the TSA or its field offices, such as the shut downs of airports, highways, bridges, etc. — whether through a real or perceived threat.

    In addition, this section stated that, "A State or local government may not enact, enforce, prescribe, issue or continue in effect any law, regulation, standard, or order to the extent it is inconsistent with this section or regulations prescribed under this section." That means that state and local governments would have been pre-empted from releasing and, to some extent, utilizing information regarding the transportation infrastructure or facilities. Local communities, therefore, would have little ability to participate in their own protection because they would have no knowledge of any dangers on local roadways, airports, seaports or other transportation facilities. As these changes were being proposed, the bill failed to provide any guidelines as to when information might be appropriately released, either generally or in time of emergency.

    Section 4439 of H.R. 3550 stated that the TSA can only reveal information regarding the vulnerability of hazardous materials in very limited situations. This information could only be given to:

  • The owner, custodian, offeror, or carrier of such hazardous material;
  • An officer, employee, or agent of the United States Government, or a state or local government, including volunteer fire departments, concerned with carrying out transportation safety laws, protecting hazardous material in the course of transportation in commerce, protecting public safety or national security, or enforcing Federal law designed to protect public health or the environment; or
  • In an administrative or judicial proceeding brought under this chapter, under other federal law intended to protect public health or the environment, or under other federal law intended to address terrorist actions or threats of terrorist actions.

    As one can deduce from the language of both provisions, the access community dodged a large-caliber bullet by not having this legislation passed. Chances are good that it will be introduced again in the 109th Congress.

    Intelligence-reform bill
    The Intelligence Reform and Terrorism Prevention Act of 2004 — which was passed into law in December as the most extensive overhaul of our intelligence laws in more than 30 years — contained several provisions which are potentially damaging to access to intelligence information. After much negotiation (some of which was conducted in secret on drafts of the bill that were not themselves made public), this bill (S. 2845) keeps the intelligence budget secret, creates an internal government review board that has power over all decisions to stamp documents as “secret” and proposes overall review and oversight of access to intelligence issues, all the while vesting disproportionate power in the director of national intelligence, who can now oversee and “protect” information held by 15 agencies. In fact, the director could virtually gag thousands of government employees in the name of national security.

    Meanwhile, several provisions that would have provided at least some oversight of the government’s intelligence activities were stripped out, including:

  • A section that would have required the establishment of intelligence reporting guidelines to maximize the dissemination of information while protecting intelligence sources and methods.
  • A section that would have limited over-classification and offered incentives for inter-agency sharing of information.
  • A section that would have created an executive council on information sharing that would: (1) make public reports to Congress and (2) otherwise inform the public of its activities.
  • FOIA exemption for satellite imagery

     Introduced on April 22, 2004, H.R. 4200 (the National Defense Authorization Act) was passed into law on Oct. 9, 2004. Section 914 of this law exempts maps, reports or analyses that are derived from commercial satellite images and then licensed to the government, even if those images are not classified. State or local laws to the contrary are be preempted to the extent that these government officials cannot release this information even if they so desire.

    Although this language looks damaging, it is actually a step down from the language in the original Senate bill (Section 1034 of S 2400) which went beyond an exemption to an outright prohibition on the disclosure of this information. The narrowing occurred in a conference committee at the last minute to apply the language only to imagery whose sale to non-government persons is already prohibited for reasons of national security.

    Free-Speech Protection Act
    This effort by Sen. Christopher Dodd, D-Conn., was the first bill introduced in 17 years (since Sen. Harry Reid introduced legislation on the same topic in 1987) that would provide a statutorily based privilege protecting reporters from being compelled to testify in or produce documents for a federal court.

    The bill addresses all of the major topics that split the journalism community when it approached this topic throughout the 1970s and early 1980s. For instance, the bill does not attempt to define a “journalist,” instead providing protection to a “covered person” who is one who (1) engages in the gathering of news or information, and (2) has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public, with the term “news or information” defined very broadly in an attempt to cover as many media outlets as possible.

    The bill does list seven types of news media that are specifically covered, including:

  • newspapers
  • magazines
  • journals or other periodicals
  • radio
  • television
  • any means of disseminating news or information gathered by press associations, news agencies or wire services
  • any printed, photographic, mechanical or electronic means of disseminating news or information to the public
  • Another issue that was particularly divisive in past years was the extent of the privilege to be applied. Some media entities would only support an absolute privilege, which others believed that a qualified privilege was the more realistic — though less desirable — option. Sen. Dodd’s bill proposed the former, creating an absolute privilege for confidential sources, rendering the information inadmissible in any proceeding or hearing before any branch of the federal government.

    A qualified privilege would apply to materials such as notes, outtakes, photographs or negatives, video or sound tapes, film, or other materials that are not communicated in the news media. This qualified privilege could only be overcome through clear and convincing evidence that (1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the federal government; and the news or information could not be obtained by alternative means; and (2) there is an overriding public interest in the disclosure.

    As it was not introduced until Nov. 19, 2004, the bill did not even receive a hearing in Congress. It has now been introduced in the 109th Congress as S. 369.

    Coffin photos
    On March 11, 2004, Rep. Charles Rangel, D-N.Y., introduced H. Con. Res. 384, which sought to remove all restrictions on the ability of the press to cover repatriation ceremonies, stating that all restrictions should be removed "from the public, the press, and military families in mourning that would prohibit their presence at the arrival at military installations in the United States or overseas of the remains of the Nation's fallen heroes, the members of the Armed Forces who have died in Iraq or Afghanistan, with the assurance that family requests for privacy will be respected.”

    Rep. Rangel’s resolution was not voted on by the House.

    On June 7, Sen. Frank Lautenberg, D-N.J., introduced an amendment to the Department of Defense authorization bill which related to the coverage by the media of the return to the United States of the remains of soldiers killed overseas. It would have required the Secretary of Defense to “develop a protocol that permits news coverage of the return to the United States of the coffins containing the remains of members of the Armed Forces who are killed overseas.”

    That protocol would allow for open repatriation ceremonies, while ensuring that the ceremonies remain dignified and the identities of the actual soldiers whose remains are being returned to the United States are kept confidential.

    Lobbying efforts for the proposal were unsuccessful. The amendment was defeated and not included in the final version of the bill that passed Congress.

    Defense of Privacy Act
    This bill was introduced on Jan. 27, 2003, by Rep. Chabot, R-Ohio. After receiving little attention for nearly one year (a hearing was held in the Subcommittee on Commercial and Administrative Law of the House Judiciary Committee on July 22, 2003), H.R. 338 suddenly passed that subcommittee on June 23, 2004, and then passed the full Judiciary Committee on July 7, 2004.

    The bill would have amended Title 5 of the United States Code to require that agencies, in promulgating rules, take into consideration the impact of such rules on the privacy of individuals. Specifically, whenever an agency was required by section 553 of Title 5 to publish a general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue code, that agency would have to prepare and make available for public comment an initial privacy impact analysis to assess the extent to which personally identifiable information such as an individual's name, address, telephone number, photograph, Social Security number or other identifying information would be affected.

    The analysis would have been required to describe the impact of the proposed rule on the privacy of individuals. Upon publication of a final rule, the agency would have to prepare a final privacy impact analysis, signed by the senior agency official with primary responsibility for privacy policy.

    Annual publication would also be required in the Federal Register of all rules reviewed under this law, with a brief description of each rule and the need for and legal basis of that rule.

    The bill never received a vote on the House floor.

    Animal identification information
    H.R. 4005 was introduced March 18, 2004, by Rep. Peterson, D-Minn. It would have exempted information obtained through the livestock identification system from disclosure under the Freedom of Information Act.

    There were certain exemptions to this secrecy provision. Disclosure would be allowed if: (1) the information involved livestock threatened by disease or pest, or (2) the person obtaining the information needed the information for reasons consistent with public health and public safety purposes.

    Disclosure would be required if the requester was (1) the person owning or controlling the livestock, (2) the attorney general, if the request was made for the purpose of law enforcement; (3) the secretary of homeland security, if the request was made for the purpose of national security; (4) a court of competent jurisdiction; or (5) the government of a foreign country, if the request was necessary to trace livestock threatened by disease or pest.

    The bill was referred to both the Agriculture Committee and the Government Reform Committee, but received no attention from either.

    109th CONGRESS, 1st SESSION (2005)

    Openness promotes effectiveness in Our National (OPEN) Government Act
    After an extensive research and drafting process undertaken by Sen. John Cornyn, R-Texas, and his staff, legislation proposing the first major changes to the federal Freedom of Information Act in nearly a decade has been introduced in both Houses of Congress. S. 394 was introduced by Sen. Cornyn and Sen. Patrick Leahy, D-Vt., Rep. Lamar Smith, R-Texas, has introduced the same bill in the House as H.R. 867.

    These bills have several provisions intended to improve the efficiency of FOIA so that it remains a useful and effective tool for the public and press. These include:

  • A broader definition of the “news media” for purposes of obtaining waivers of the full copying and search fees for obtaining government documents, with that definition focusing on the newsgathering function of the requester, not on the status of the requester as a journalist. This is very important because it does not allow the government to define the term “journalist.”
  • An increase in the circumstances allowing for recovery of attorneys fees by a litigant who must go to court to obtain documents from a federal agency. This will combat instances in which a FOIA requester must go to court to get records requested from the government, investing time and money in the endeavor, only to get the records on the eve of an eventual court decision but be denied recovery of the attorneys fees spent in pursuing the court litigation because the records were technically not released pursuant to a final decision of the court.
  • Creation of 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. Since passage of the Critical Infrastructure Act of 2002, access advocates have sought legislation that would rein in the seemingly unlimited ability of the government to withhold information submitted by private entities seeking government assistance with security issues that affect the nation's infrastructure. This does not accomplish that goal. However, it is a positive step forward, as it will allow the processing of critical infrastructure information to be subject to some public oversight; this will allow the public to discern whether private companies are abusing this program in order to "hide" possibly embarrassing or damaging information that is completely unrelated to the nation's critical infrastructure.
  • Creation of strict penalties that apply when the government fails to comply with the statutorily required 20-day deadline for responding to a FOIA request. This provision attacks the major problem that exists within FOIA today — the long waiting times for records that are requested from many government agencies. No longer will these agencies be able to simply ignore this deadline, as they will lose the ability to use certain FOIA exceptions to withhold documents as a penalty for noncompliance.
  • The clarification that records which been given to private contractors for storage and maintenance are still subject to FOIA.
  • The creation of a “FOIA Ombudsman” within a new Office of Government Information Services to oversee FOIA and ensure it is administered fairly.

    The Senate Judiciary Committee’s Subcommittee on Terrorism, Technology and Homeland Security held a hearing on this bill on March 15, 2005, to coincide with Sunshine Week. Testifying at the hearing were:

  • Katherine M. "Missy" Cary, assistant attorney general of Texas
  • Walter Mears, former Washington bureau chief and executive editor, The 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

    Faster FOIA Act
    In another attempt to attack the ever-growing FOIA backlog, Sens. Cornyn and Leahy also introduced S. 589. This bill would create a 16-member commission that would report to Congress and the president with recommendations for ways in which delays can be reduced in FOIA processing. The commission’s report would be due no later than one year after the date of enactment of the law, and would include recommendations for legislative and administrative action to enhance FOIA performance.

    The commission would also have to produce a study to ensure the efficient and equitable administration of FOIA throughout the federal government, which would include an examination of the system for charging fees and granting fee waivers.

    Free Flow of Information Act
    On Feb. 14, 2005, Sen. Dodd reintroduced his version of a reporter’s shield law. It was given bill number S. 369.

    Garnering more attention was the introduction by Rep. Mike Pence, R-Ind., and Rick Boucher, D-Va., of H.R. 581, which was subsequently introduced by Sen. Richard Lugar, R-Ind., in the Senate as S. 340.

    Known as the “Free Flow of Information Act,” these bills are based largely on the Department of Justice’s policy guidelines for issuing subpoenas to members of the news media. The bills provide an absolute privilege against compelled testimony before any federal judicial, legislative, executive or administrative body regarding the identity of a confidential source or information that would reveal the identity of that source.

    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 toll records or e-mail records and, in the event that they 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 disclosure.

    As with all proposed shield laws, a key issue is defining who merits the protection of the law. In these proposals, the law speaks 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.

    Neither bill has received a hearing in its respective Judiciary Committee.

    General privacy legislation
    As usual, multiple bills have been introduced that purport to protect the privacy of personal information, especially when that information is available online. The bills, none of which is expected to gather significant attention or action from their committees of reference, are:

    Social Security On-Line Privacy Protection Act
    Introduced Jan. 4, 2005, by Rep. Rodney Frelinghuysen, R-N.J., as H.R. 82, this bill would regulate the use by interactive computer services of Social Security account numbers and related personally identifiable information. It was referred to the House Energy and Commerce Committee.

    Online Privacy Protection Act of 2005
    Introduced Jan. 4, 2005, by Rep. Frelinghuysen as H.R. 84, it would require the Federal Trade Commission to prescribe regulations to protect the privacy of personal information collected from and about individuals who are not covered by the Children's Online Privacy Protection Act of 1998 on the Internet, in order to provide greater individual control over the collection and use of that information. It was also referred to the House Energy and Commerce Committee.

    Privacy Act of 2005
    Introduced Jan. 24, 2005, by Sen. Dianne Feinstein, D-Calif., as S. 116, it will require the consent of an individual prior to the sale and marketing of such individual's personally identifiable information. It was referred to the Senate Judiciary Committee.


    2005 FOI update: Electronic access

    Update on issues involving access to electronic court records for 2005 National FOI Day conference. 03.10.05

    ‘Strange Bedfellows: Reconciling Privacy & Freedom of Information’

    Speech by Lee Levine at National FOI Day conference, March 16, 2005. 03.16.05

    National FOI Day

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