New FOIA reform legislation expected soon

Newly empowered congressional Democrats likely will introduce legislation to reform the Freedom of Information Act in the next month, sources in both chambers said this week.

The bill's introduction likely will coincide with Sunshine Week March 11-16, an initiative led by the American Society of Newspaper Editors to educate the public about the importance of open government. National Freedom of Information Day also happens that week, on March 16.

Rep. William Lacy Clay, D-Mo., chairman of the House Oversight and Government Reform Subcommittee on Information Policy, Census and National Archives, said Wednesday after a hearing on FOIA that he expects to see reform legislation introduced soon.

Clay said Rep. Henry Waxman, D-Calif., chairman of the Oversight and Government Reform Committee, will be heavily involved in crafting the measure. A bill that was approved at the subcommittee level in September 2006 (H.R. 867) will be used as a starting point.

"We are trying to refine that," Clay said. "We're trying to improve upon it."

In a statement, Waxman said he looks forward to working with Clay on legislation to strengthen FOIA, and is pleased, as the law was the focus of the subcommittee's first hearing in the new Congress.

Similar legislation (S. 394) introduced by Sen. John Cornyn, R-Texas, cleared the Senate Judiciary Committee last fall.

Both bills would have imposed stricter enforcement of the existing 20-day deadline for responses to requests for information under FOIA and would have created a system to allow the public to track the status of requests online and via a telephone hotline. At the end of 2005, the requests in 22 government agencies totaled nearly 150,000, up about 20 percent from the previous year.

The legislation also called for a FOIA ombudsman to mediate disputes between the government and members of the public.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, is planning to reintroduce a similar version of last year's bipartisan legislation, according to committee spokeswoman Tracy Schmaler.

Last year's legislation might have had a greater chance of passing had President Bush not issued an executive order in December 2005 requiring agencies to improve their processes for responding to information requests. Subsequent agency reports in response to the order have shown that agencies have plans for improving the administration of FOIA requests.

While the executive order may have appeased a Republican-run Congress, sources said the Democrats who run Congress now are likely to move aggressively on the legislation this session, for fear that if delayed to 2008, it could get lost in the midst of a presidential election year.

The success of Bush's executive order in improving agency response times to requests is also likely to affect the legislation, sources said.

Melanie Ann Pustay, acting director of the Justice Department's Office of Information Policy, the group that shares the job with the Office of Management and Budget of enforcing the executive order, said at a hearing Tuesday that it is too early determine how effective agencies have been in implementing their plans. But Pustay said so far she has been very pleased with the results.

Asked why the Justice Department had more two dozen identified deficiencies in its plan, including eight at the FBI, Pustay said she thinks "that is just to be expected" and can be blamed on the logistical challenge of moving offices.

Pustay said that the latest edition of the FOIA Guide produced by the Justice Department was delayed from its December 2006 release date because that timeline was "overly optimistic."