The Senate Judiciary Committee passed amendments to the FOIA today. The proposed law creates a 25 year limit on Exemption 5 and other language on the use of Exemption 5. The bill passing the committee did strip out the statutory use of the foreseeable harm test that was in the original proposal. The National Security Archive has more on the bill.
The next step is that the full Senate must vote on it; after that it must be reconciled with a House bill that passed earlier this year. And as I've said before, the clock is ticking on the congressional calendar.
The Senate Judiciary Committee's agenda for Nov. 20, 2014 has the FOIA Improvement Act of 2014 set for discussion. The mark up of the bill has been postponed twice; if it doesn't get through the committee tommorow, chances are that its done for this session. If it gets through the committee it will then go to the entire Senate; after passage it would need to be reconciled with the House version of the bill.
Government Attic has received documents concerning DOJ's take on various legislation. One of the documents is the DOJ position on the 2007 FOIA amendments, which created the Office of Government Information Services (OGIS). To say that DOJ was not a fan of the creation of this office is an understatement. The letter is the fourth letter in this set of documents.
This letter is relevant as the FOIA legislation before Congress also has additional responsibilities for OGIS.
Earlier this week, the Hill reported that the Senate Judiciary Committee would mark up the bill amending the FOIA today, Nov. 13, 2014. I have learned that today's mark up session has been postponed and will now be held next week.
Senator Leahy, the Committee's chair issued the following statement:
“I have worked with Senator Cornyn for months on the FOIA Improvement Act. It has broad bipartisan support, including the support of Ranking Member Grassley. Because of scheduling challenges in the Senate this Thursday, we are likely to hold the Committee markup off the floor this week. This FOIA bill should be debated in full public view, and so we will hold over our legislation this week so all members and the public can participate in this important debate. I expect the Judiciary Committee will approve our bipartisan legislation next week when the Committee meets at its regularly-scheduled time.”
While the Senator still expects the bill to be approved so it can go to the full Senate, the current legislative session still only has a few days remaining, so it remains to be seen if this bill, which would have to be still reconciled with the House bill, becomes law.
The Hill reports that the Senate Judiciary Committee plans to vote on its FOIA bill on Nov. 13. After the bill passes the committee it will need to go to the full Senate and then the bill will have to be reconciled with the bill passed by the House of Representatives. And all of this will have to be done in the short lame duck session between now and when the new Congress is sworn in in January of 2015. After that, Congress would have to go back to square one with any legislation concerning the FOIA.
The major change to the FOIA in this bill is the adoption of the foreseeable harm test into the statute- meaning that courts will now have the opportunity to weigh in on the test rather than it being only at the agencies unreviewed discretion.
Over 50 groups have sent a letter to the President urging him to sign the FOIA reform bill that is currently in Congress. More on the letter in the Hill.
Of course, if Congress never acts on the bill, the President won't have to worry about whether to sign it. The House passed its version of the bill but the Senate version hasn't yet reached the Senate floor.
The Senate Judiciary Committee failed to get to the FOIA amendments pending before it before it went out on recess. The bill was "held up" in legislative language and is supposed to be addressed when the Senate comes back after the November elections. Once it gets past the committee, it will still need to get before the full house and then either committee with the House or be passed by the House of Representatives in the language adopted by the Senate. It will be a tough road to pass this legislation this session of Congress.
The RTDNA (Radio Television Digital News Association) has came out strongly in favor of passage of the pending FOIA reforms in the Senate. As the article states and I stressed over the summer, there is only a few legislative days left in Congress this session, so if the FOIA bill is going to be passed, the Senate needs to get busy.