Update 9/27/07
Update, 9/27/07 FOIA reform. The House has the next move. After whirlwind negotiations between the staffs of Sens. Leahy and Kyl just ahead of the summer recess, an amended OPEN Government Act passed the Senate. It was sent to the House, which passed a bill in March that differs in several significant ways. Here’s how: § The House bill has what’s called a ”pay-go” provision, essentially providing for the funding of any added expenses that wouldn’t be covered through a specific appropriation. Importantly, this finances the anticipated increase in legal fee reimbursements for those who sue an agency for records and substantially prevail. By rule, the House does not adopt legislation without a “pay-go” provision. It’s a small matter, but a big hang-up. § The House bill requires an ‘impact” statement in any new legislation that creates a new statutory exemption to FOIA, clearly calling attention to the exemption. It was designed to flag such agency-sponsored exemptions, which are often buried deep in appropriations or authorization bills. The Senate bill has a similar provision, but in the last minute negotiations, language of the existing statute, setting criteria that must be met to implement a new exemption, was eliminated. The change could have a seriously adverse impact in that it clears the way for new exemptions that could give agencies broad discretion in deciding what records to withhold. The House Government Reform Committee leadership, which is now reviewing the Senate bill, correctly wants this fixed. § The Senate bill also differs in establishing when the clock starts on the 20-days an agency has to respond, giving agencies as much as 10 days to route the request to the component that will actually handle it. The House bill allows no such time break. This change is not likely to hang up the bill. § Finally, the House bill establishes law a presumption that government records are public and that information that is not exempt should be made public, in effect reversing the Ashcroft memo of 2001. This was deliberately left out of the Senate version because its sponsors considered it veto bait. It still is. Senate and House sponsors have both indicated they plan to meet to see if they can work out their differences. But that hasn’t happened yet. If they can reach an agreement, it might be possible for the House to amend and pass the Senate bill and send it back for re-passage there. Otherwise, the bill is likely to go to conference, a largely closed series of sessions from which something new and different could emerge. Stories, editorials and commentary could help move the bill along. There’s an item on the bill on the CJOG website (www.cjog.net) along with links to the text of the House and Senate bills. * * * Markup on thecompromise Reporter-Source Shield Bill, filed bySens. Arlen Specter, R-PA, Chuck Schumer, D-NY, and Richard Lugar, R-IN, got started today in the Senate Judiciary Committee but was carried over until next Thursday. Some 20 amendments have been filed. Only a handful were taken up and more could be filed before next week’s session but overall the prospects for the bill look good. The committee moved ahead despite opposition from Director of National Intelligence Mike McConnell and from the Justice Department. Sen. Jon Kyl, R-AZ, offered an amendment that would have made it easier for prosecutors to force reporters to reveal sources in criminal or intelligence cases. It failed by a 13-6 vote. Another amendment, providing that any covered journalist could not be the member of a terrorist organization, was approved. There have been a number of excellent shield editorials in the past week and are posted on the Commentary page of the website. The text of the bill and an analysis are on the front page of the website. Pete Weitzel
