2005 FOI update: federal legislation

Tuesday, March 15, 2005

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

    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

    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

    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
    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

  • 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
  • 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

    Safe, Accountable, Flexible and Efficient (SAFE) Transportation

    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

  • Be an unwarranted invasion of personal privacy.
  • Reveal a trade secret or privileged or confidential commercial or financial
  • 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

    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

    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
  • 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

    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.

    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
  • 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
  • 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

    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

    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.