Congress Ponders Bills to Ease FOIA Backlogs

Posted May 11, 2005 at 6:50pm

After spending years without much scrutiny from Congress, the Freedom of Information Act got its second oversight hearing in two months Wednesday when a House Government Reform subcommittee examined FOIA’s utility in promoting open government.

Legislation has been introduced in both chambers that seeks to dramatically reduce the bureaucratic backlogs and administrative hurdles that individual citizens and news organizations face in obtaining access to information. The Senate Judiciary Committee held a hearing on the issue in March and has already moved one piece of legislation to the floor.

But it’s not at all clear that the House had the same intention in holding the hearing Wednesday.

“We have no plans at this point to move forward on the legislation,” said Mike Hettinger, staff director for the subcommittee on government management, finance and accountability.

Hettinger said the hearing was held instead to “set the table” for consideration of the legislation that’s been introduced by Reps. Lamar Smith (R-Texas) and Brad Sherman (D-Calif.), as well as a measure Government Reform ranking member Henry Waxman (D-Calif.) plans to introduce this week.

“I hope the hearing wasn’t simply for show,” Waxman said in a statement afterwards. “We need tough oversight and real legislation, not drama productions.”

Lawmakers on the subcommittee, including its chairman, Rep. Todd Platts (R-Pa.), however, were focused on the myriad problems individuals have getting information from executive branch agencies and appeared willing to consider legislation that would create consequences for agencies that don’t comply with the statue. In his closing statements, Platts seemed to suggest that he supports the idea of reform.

Originally enacted in 1966, FOIA established a statutory right of public access to agency records. Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.), along with dozens of public interest and media organizations, have recently led a growing chorus of criticism of how the law has been implemented by the executive branch, especially since Sept. 11, 2001.

But at least prior to Wednesday’s hearing, Platts seemed equally concerned with how public access to information could possibly undermine the nation’s security. In a statement announcing the meeting, Platts wrote: “Balancing the need for open government with the need to protect information vital to national security and personal privacy is a constant struggle.”

Cornyn, Leahy, Smith and others promoting the proposed OPEN Government Act maintain that their bill adequately protects sensitive information and warn that agencies often use national security as an excuse for withholding information when the real culprit is often bureaucratic inertia.

Smith and others were optimistic that Wednesday’s hearing was the first in what they hope will be an ongoing assessment of the issues.

“I am pleased that the Government Reform Committee is addressing the Freedom of Information Act, and I believe that as a result of their studying the situation, they will see the need for the OPEN Government Act and move forward on it,” Smith said in a statement.

The Senate Judiciary panel has already held a hearing on that bill and has already passed out related legislation that would create an advisory commission on delays in processing FOIA requests. The Faster FOIA Act, also sponsored by Leahy and Cornyn, would direct the commission to report to Congress and the president on how to reduce the lengthy delays in the federal government’s handling of FOIA inquiries.

Cornyn’s efforts to promote his two bills were met with a little more resistance Wednesday on the House side, however. As a condition of the subcommittee agreeing to enter his statement into the record, Cornyn had to agree to remove some language the panel found objectionable, according to a House source.

Indeed, removed from the revised version of Cornyn’s statement was a paragraph referring to what Cornyn asserted was an inaccurate description of his legislation. The House subcommittee pointed out on its Web site that “Recent legislative proposals would make significant changes to [agency’s] exemptions [from FOIA] and create new deadlines for agency compliance.”

In his statement, Cornyn wrote: “The OPEN Government Act would not create new deadlines for agency compliance; it would simply provide additional mechanisms to enforce the deadlines long established under current law.” Cornyn added that his bill also does not alter the scope of any current exemptions.