The FOIA blog

Congress Looking at Proactive Disclosure Requirement for Top Military Misconduct

Military.com has this on a proposal going in the next National Defense Authorization Act that would require the Pentagon to proactively disclose misconduct of Generals, Admirals and those of similar civilian rank.  Currently this information is only made public after someone files a FOIA request for, which necessitates someone knowing that the conduct was investigated - the requirement would take it out of the FOIA and make all misconduct of high ranks automatically public.

This would also help FOIA Offices as they would no longer have to process these types of requests.  The proposal has a long way to go before becoming law, it has to clear the House of Representatives, be adopted by the Senate's version of the law, be in the final law and then be signed by the President.  

Bills Related to FOIA Pass House Committee

FCW has this on a few bills that have made it through the House Oversight Committee that relate to FOIA (but are not FOIA bills).

The first bill is the Electronic Message Preservation Act that deals with records management.  This bill would empower NARA to issue rules to agencies for the capture of and preservation of electronically created records so that they would be accessible via electronic searches.  This bill aims to stop agencies from using electronic messaging apps that automatically delete after being sent.

The second bill is one that would require agencies to make FOIA records available to the Office of Government Information Services ("OGIS") upon request.  OGIS is the FOIA ombudsman and in order to do its job on FOIA meditations often needs to see agency records; however agencies are currently under no obligation to cooperate and provide the records to OGIS.

As all of us who watched School House Rock as kids know, both bills will need to go to the full House and then be passed by the Senate before becoming law.

House Tried to Sneak Border Patrol FOIA Exemption Through (Updated)

Legislation giving the Border Patrol leeway to bypass a number of laws would allow the Border Patrol to exempt itself from the FOIA as well in certain instances according to the Tucson Sentinel.  According to the article, the intent of the law wasn't to allow exemption from FOIA, however it is drafted to allow that result. 

The public's right to know isn't outweighed by operations of the Border Patrol - in fact, its quite the opposite.  Hopefully, this provision will be dropped or refined before the House votes on the legislation.

Update - per my friend Todd Gillman of the Dallas Morning News, the provision exempting Border Patrol from the FOIA has been removed from the bill.

 

Private Prison FOIA Bill Introduced

People for the American Way has this on Senator Ben Cardin's (D-MD) introduction of a bill to make private prisons subject to the federal FOIA.  The government has been shipping prisoners to privately ran facilities for years, and there have been a number of attempts to make them subject to the same transparency as the federal correctional facilities.  The Obama administration was in the process of getting the federal government out of the use of private prisons but the current administration has reversed those policies.  It is unclear if Senate leadership will take up this important bill or whether a companion bill will be introduced in the House.

President Obama to Sign FOIA Bill Today

The White House has announced that the President will sign the FOIA legislation this afternoon.  It has issued this lengthy fact sheet about transparency.

Summary of FOIA Improvement Act of 2016

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.

Obama Expected to Sign FOIA Bill

The Associated Press has this article about the FOIA bill passing Congress.  According to the article, the President is expected to sign the bill.

FOIA Reform Update

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.

Who Was Behind DOJ FOIA Reform Block?

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.

 

House Passes FOIA Amendments

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.