Meaningful FOIA reform on the horizon?

The U.S. House Subcommittee on Information Policy, Census and the National Archives met today to discuss the need for reform of the Freedom of Information Act.

The Sunshine in Government Initiative, of which SPJ is a part, has pushed hard for meaningful FOIA reform.

Today's hearing, aimed at bringing new legislators up to speed on this issue, included testimony on behalf of the news media. The coalition chose former Knight Ridder Washington Bureau Chief Clark Hoyt to testify not only because of his interest in open government, but also because of his insider knowledge of federal open-government issues. Hoyt relied heavily on federal documents when reporting for Knight Ridder on the Iraq War, and he has become increasingly frustrated over the years by the U.S. Department of Justice's litigation tactics.

The complete text of Hoyt's testimony is available through this link [PDF, 116 KB].

This summary of today's hearing is provided by Laurie Babinski of Baker Hostetler in Washington, D.C., SPJ's legal counsel:

"The representatives' comments and questions today confirmed that, as a result of our efforts, we are hitting the right note with the subcommittee members.

"Each of the representatives present, many of whom are new, appeared to fully understand the need for effective FOIA reform and see the merit in the provisions the coalition has been pushing to have drafted into the bill: the creation of an ombudsman within each government agency, increased reporting requirements, penalties for non-compliance and attorneys’ fees.

"Linda Koontz, director of information management for the Government Accountability Office, and Melanie Ann Pustay, acting director of the Office of Information and Privacy at the Department of Justice, testified on the first panel on behalf of the government.

"Koontz and Pustay testified that government agencies, as mandated by Executive Order 13392, are trying to fix the FOIA system through internal measures that haven’t yet been fully implemented and thus cannot be evaluated. (Issued in December 2005, the Executive Order calls for agencies to review FOIA procedures, set a plan to cure defects in the FOIA process, make progress to fall in line with those plans, and report that progress back to Congress).

"Though they argued that congressional intervention is unnecessary at this time, Koontz and Pustay did concede that certain minor fixes to FOIA reporting requirements – such as requiring the agencies to report mean, rather than median, average process times – may be useful.

"Subcommittee members Reps. William Lacy Clay (D-Mo.), Carolyn Maloney (D-N.Y.), John Yarmuth (D-Ky.), Paul Hodes (D-N.H.), Michael Turner (R-Ohio) and Bill Sali (R-Idaho) were present for at least a portion of this afternoon's hearing, during which Koontz and Pustay underwent tough questioning in response to several of their statements.

"In particular, Rep. Hodes pushed for an answer about whether the Executive Order could be relied on as an effective open-government reform in light of the Ashcroft Memorandum. (Issued in October 2001, the Ashcroft Memorandum asks that 'any discretionary decision ... to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information' and emphasizes that the Department of Justice will defend decisions to withhold information unless they lack a 'sound legal basis.' The Ashcroft Memorandum a marked departure from the memorandum it superseded, the Reno Memorandum, which requested the discretionary withholding of information only if there was a 'foreseeable harm' that could result from its release.)

"Pustay testified that the Ashcroft Memorandum did not change the substantive law of FOIA and would thus have no effect on compliance with the Executive Order.

"Additional questions focused on the extent of the government's backlog of FOIA requests, efforts to educate FOIA officers and denials of routine information.

"Clark Hoyt of McClatchy Newspapers (and on behalf of the Sunshine in Government Initiative), Caroline Fredrickson of the ACLU and Meredith Fuchs of the National Security Archives at George Washington University testified on behalf of open-government reform.

"In his opening remarks, Hoyt emphasized the importance of investigative stories, such as Chris Adams’ recent article on the Department of Veterans Affairs’ treatment of soldiers with post-traumatic stress syndrome. Hoyt spoke about some of the obstacles that arise when a reporter such as Adams attempts to use FOIA to break such stories. Hoyt then suggested that any meaningful reform should include the four provisions noted above.

Throughout his testimony, Hoyt gained credibility by emphasizing that the Sunshine in Government Initiative wants to build bipartisan support for what it considers a purely procedural bill. This stood in stark contrast to Fredrickson’s subsequent testimony, in which the ACLU took the politically charged position that the Bush Administration has intentionally made it harder to obtain records sought under FOIA.

Meredith Fuchs, who testified last, said that the National Security Archives supports the recommendations made by the Sunshine in Government Initiative.

Hoyt leveraged his credibility, and the subcommittee's members appeared receptive to his recommendations. At Rep. Turner’s request, the Sunshine in Government Initiative agreed to provide a draft bill to the subcommittee for its consideration.

We will continue to work with Rep. Henry Waxman’s staff and the subcommittee members in drafting the provisions of the new bill -- especially the ombudsman provision, which is being retooled after discussion with committee staff who disfavored placing the ombudsman within an agency's Inspector General’s office.

The committee is still tentatively looking to have the bill on the House floor by March. We will update you with additional information as it becomes available."