The National Law Review has this summary of the changes to the FOIA in the new law. Rumor has it that the law will be sent to the White House in time for a signing to coincide with the 50th Anniversary of the FOIA on July 4th.
Update: The bill has been sent to the White House and the timing will allow it to be signed on July 4th.
FOIA legislation has passed both the House of Representative and the Senate. The problem is that the bills that passed in each side of Congress were different. The question now becomes who gives? Will the two sides meet and pass a compromise bill or will one side pass the others bill? Government Executive has this on the state of the legislation.
The Hill has this article with links to documents showing that the Department of Justice strongly opposed the 2014 FOIA reform effort in Congress even though it had bipartisan support on the hill. There are some interesting items in the documents but they lead to more questions than answers (despite the headline that the adminstration was behind the effort to block the bill). For instance, neither the documents nor the article explain why the Department of Justice worked with one of the strongest critics of the administration, Sen. Jeff Sessions (R-AL) to block the bill. Further, the emails to the hill all come from an attorney advisor in the Office of Legislative Affairs (OLA) - not from a higher up political official from that office or from the Office of Information Policy (OIP), which sets FOIA policy guidance for the government - even though the documents indicate Justice was relying on testimony and talking points from OIP. Thus, It just isn't clear from the release who was in charge of the Department of Justice's focus on defeating FOIA reform.
Last evening, the House of Representatives passed amendments to the FOIA, many of which are very good. The Hill has more on the bill.
One thing the Hill doesn't discuss is that the amendments changes the attorney fees provision - from being discretionary to those who substantially prevail they are now mandatory. The problem is that the last FOIA amendments in 2006 took the payment of those attorneys fees from the Justice Fund for attorney fees and made them come out of FOIA office operating funds. The amendments do not change this - so if passed, any FOIA litigation that substantially prevails will be entitled to attorney fees coming directly out of agency FOIA operations. This may sound good in that those FOIA offices that are doing poorly will have an incentive to clean up their act; however, in reality it will likely mean that more money goes out to a few requesters who have sued, litigation increases and FOIA offices have to stop hiring and processing requests to make up the shortfall. Hopefully the Senate will look into this provision and make the necessary changes.
Prior to going out on recess, the Senate was slated to act on the Cybersecurity bill which included a brand new FOIA Exemption to add to 5 U.S.C. 522. This was not an exemption 3 statute, but would have become FOIA exemption 10.
After the exemption was spotted in draft legislation (there was no warning that it was coming nor was there any hearing discussing it), a coalition of non-profits, led by OpenGovernment.org became active in publicizing the provision, including writing senators. In fact, it is believed that the provision was never shown to the Senate's Judiciary Committee, which has jurisdiction over the FOIA before it was put into the legislation. Through the efforts of those opposed to the language, the exemption was pulled from the legislation prior to a planned vote.
However, as there were other problems with the legislation and no actual vote was held before recess. When the Senate convenes again in September it will likely take up this bill again. As such, the FOIA community should stay informed so that the Exemption is not inserted in again prior to passage of the bill.
Many readers will remember that earlier this month, Sen. Majority Leader Mitch McConnell (R-KY) attempted to push through a new FOIA exemption without any debate on the floor of the Senate. However, as the Sunlight Foundation reports, this attempt was blocked and the National Defense Authorization Act no longer has a new FOIA exemption attached to it.
It is not clear if McConnell will continue to fight transparency when the Senate considers legislation in the upcoming weeks.
Mitch McConnell's war on transparency lost a battle Thursday as his plan to add the Cybersecurity bill into the National Defense Authorization Act (NDAA) failed according to Politico. The McConnell plan would put the Cybersecurity bill into the NDAA but not allow any debate or amendments on the actual bill, which includes a broad 10th Exemption for the FOIA.
Senate Majority Leader Mitch McConnell (R-KY) is attempting to place the Cybersecurity Information Sharing Act (CISA) as part of the pending National Defense Authorization Act (NDAA) without allowing any debate and amendments on the CISA itself.
The problem for the FOIA community is that the CISA creates a very broad FOIA exemption as described in this memo from Open the Government. None of the congressional committees in the Senate or the House that have jurisdiction over the FOIA have had any hearings on this proposed exemption. Minority leadership of the Senate have urged McConnell to bring CISA to the floor as a stand alone bill so that it can be debated and amended.
There is no doubt that Cybersecurity is important; however, as the Patriot bill debate should have demonstrated to McConnell, pushing through legislation without allowing changes for privacy and transparency isn't the best route to take.
Update: Politico has this detailed article on the entire bill and the Democrats planned filibuster.