FOIA Legislation: The Senate's FOIA bill flew through the Senate Judiciary Committee according to ABC News. This is good and bad news. The good news is that the legislation is much more likely to be brought before the full Senate much earlier during its session than the last attempt at FOIA legislation. The bad news is the committee could have used the opportunity to have a hearing and press those that tried to put the kibosh on legislation last December. It could have made agencies testify under oath about what it believed were problems with the legislation rather than the passive-aggressive method used to put holds on the legislation before the full Senate.
Sunshine Week: The Department of Justice is holding a "Celebration of FOIA Professionals" on March 16, 2015. More details can be found here. Of course, many know that the best way to celebrate FOIA professionals is to assist them in getting better funding for FOIA Operations, working with agency higher ups to recognize the importance of a strong FOIA program in their agencies, and making sure agencies FOIA programs follow FOIA law.
FOIA Advisory Committee: The January 27, 2015 FOIA advisory committee transcript and meeting video have been posted. For those interested, the link is here.
The recently introduced FOIA Amendments have been placed on today's Senate Judiciary Committee calendar, which is an extremely strong sign that the Senate is behind passage of the bill (it should be recalled that the same bill passed the Senate on the last day of its session in the last Congress - this time its leading off the committee's legislation).
And Nate Jones of the National Security Archive has this detailed analysis of both the Senate and House bills.
The only thing I would add is a provision to allow FOIA Offices to have access to any electronic record system an agency maintains. This would cut down on the time FOIA personnel and requesters are required to wait on agency program offices, that have no rationale for making the FOIA process move faster or smoother.
FOIA legislation was last heard from in December, versions had passed both Congressional chambers but neither made it through to law for various reasons, some known and some clearly unknown. However, just like the groundhog, FOIA legislation has made its annual appearance in both floors of Congress. Yesterday, as Politico reports, versions very similar to those passed but not enacted during the previous session of Congress were introduced in a bi-partisan manner.
This is a good sign for FOIA legislation being passed during this Congress. First, it is being introduced very early during the session - last year the Senate version didn't even get introduced until the Summer. This legislation has 23 months to work its way through. Secondly, most of the legislation has already been approved by a majority of Congress, those opposing now will likely have to poke their heads up and come forward with their opposition rather than doing it anonymously, especially if hearings are held and they have to testify.
While this is no sure thing victory for those in favor of the legislation (ask Pete Carroll about that), it is more than likely that FOIA legislation gets passed prior to 2017.
Here's a report from boing boing discussing the death of the FOIA amendments in the House of Representatives. The report discusses a Washington Post article that says that agencies, including the Department of Justice (DOJ) lobbied lawmakers to kill the bill because making the "foreseeable harm" test statutory would lead to more FOIA litigation.
This argument is merely that, an argument. There is no proof that making the standard statutory would lead to more FOIA litigation. FOIA litigation is expensive for requesters to bring - the cost of filing a suit is $450 plus the cost of counsel. In fact, the opposite argument could be made - by making the standard statutory, less litigation would occur because agencies would make the analysis and would release more material.
The "foreseeable harm" test is DOJ's official FOIA policy. Thus, by using it as a reason to kill FOIA legislation, DOJ is repudiating its own policy. DOJ's official position has not yet been released to the public. The new Congress should hold hearings and make DOJ FOIA officals swear under oath what their position is, rather than allowing back channel maneuvers to kill bipartisan legislation.
The Columbia Journalism Review has this on the mainstreams press abetting Congress in failing to pass FOIA legislation this session.
Big media and the FOIA have always had a strange relationship. They don't often use the FOIA because of time delays in getting information. They don't often sue because of the perceived costs in the litigation (big media uses big law which costs more than those of us independent attorneys who regularly practice FOIA law). Thus, big media generally isn't interested in FOIA issues which of course is not what logic tells you because one would think that big media is based on information. However, these days as big media seems to be more interested in the story of the moment (that big Ebola outbreak coming to America - remember that one) or the Kardashian family, the FOIA has very little relevance to it. As such, big media paid no attention to the recent FOIA reform failure even if some attention to it may have prompted Speaker Boehner (R-OH) to bring it to the floor while the House was in session.
Basically, big media's assistance in the death of FOIA reform is not a surprise as its in line with much of where it has been heading for the last 25 years. Its just too bad Aaron Sorkin wasn't writing the script.
Assuming the House of Representatives doesn't have to come back to pass any budget related matters, it is likely that the FOIA bill is dead for this congressional session. Newsweek has this on the bill.
Advocates of the bill have been saying it is unlikely that the bill can pass during the next Congress, but I'm not entirely sure of that -- past FOIA bills have had to come up in multiple congresses before passing.
Either way, the fact that the bill was very close and was tabled because of the influence of lobbyists that found a problem in the legislation that didn't even exist is frustrating not only for those who wanted the bill to pass but for those who want the American democratic process to be a shining light for the world - not an embarrasment.
It looks like a FOIA bill passing this session is a slim possibility. OpentheGovernment.org has this update, in which they cite Speaker of the House Boehner (R-OH) saying "he has no knowledge of the plan" to pass the FOIA bill.
The best hope for this bill would be a government shutdown that causes Congress to stay in session - I'm not saying that is a good thing for the country overall, its just the only way a FOIA bill could pass. Call it a FOIA hail mary.
This is breaking - Freedominfo.org is reporting that unnamed anonymous banking lobbyists are urging certain House members to stop a vote on the FOIA amendments. The bill needs to be placed on the schedule today or it dies for the year.
A few points to ponder - the FOIA bill does absolutely nothing to change the way banking material is treated under the FOIA. If anything, the bill is a lost opportunity to loosen up what is treated as bank information under FOIA exemption 8. This exemption is used much more since the banks (who are the ones allegedly behind stopping the bill) helped usher in the Great Recession.
Further, whether you agree with the amendments to the FOIA or not, the use of unnamed lobbyists to stop a transparency bill is not only ironic, it is an embarrasment to our system of government.