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:

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:

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:

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:

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.

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.