FOIA Amendments Beneficial to Citizen Journalists Held Up in Senate

The New York Times reports that a bi-partisan bill (H.R.1309) to amend the Freedom of Information Act (FOIA) is stalled in the Senate after passing the House in March 2007 with a large majority (308-117). The bill and its counterpart (S.849), which cleared the Senate Judiciary Committee on April 12, 2007, aim to overhaul FOIA in order to make government agencies more accountable and efficient in responding to information requests from the public. The bills propose the following amendments to FOIA:

  • Clarification of the 20-day statutory deadline for agency responses, backed up by loss of available exemptions for withholding requested materials;
  • Establishment of a FOIA tracking system and hotline to allow the public to track the status of requests;
  • Allowance for recovery of legal costs from an agency in case of "a voluntary or unilateral change in position by the [agency], where the complainant's claim or defense was not frivolous." (As David Carr of the Times writes, this provision stops an agency from simply "finding" the information the day before the case goes to trial, at least without incurring some liability for legal costs.);
  • A requirement of reports to Congress on how agencies handle FOIA requests; and
  • Creation of a FOIA ombudsman to help resolve disputes between the public and agencies without litigation.

The bills also define "the news media" to include bloggers and other online journalists. S.849 and H.R.1309 provide:

In making a determination of a representative of the news media . . . , an agency may not deny that status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester. Prior publication history shall include books, magazine and newspaper articles, newsletters, television and radio broadcasts, and Internet publications. If the requestor has no prior publication history or current affiliation, the agency shall consider the requestor's stated intent at the time the request is made to distribute information to a reasonably broad audience.

This is good news for citizen journalists, because it would make them eligible for the same waiver of fees that is available to the traditional news media. As we noted yesterday, the CIA recently changed its Rules on this subject as well. The FOIA amendments would make this the standard for all agencies covered under FOIA.

Unfortunately, not much progress has been made on the legislation since the early Spring. A lone Senator, Republican Jon Kyl of Arizona, is blocking the bill under Senate rules that allow any senator to place a "hold" on a bill, thus preventing it from coming before the full Senate for a final vote.

When approached by the New York Times, Senator Kyl's press secretary said that "Senator Kyl agrees that F.O.I.A. needs to be modernized, though the bill in its current form has a series of unintended consequences that need to be repaired." It appears that Senator Kyl put a hold on the bill, at least in part, because of concerns raised by the Justice Department in a letter to the sponsor, Senator Leahy of Vermont (D), back in March 2007. As the Times article clarifies, Leahy's staff met with the Department of justice and amended the the bill to reflect some of its concerns.

Because of Senator Kyl's intransigence, the proposed FOIA amendments have been garnering a good deal of attention in recent weeks. Besides the New York Times article yesterday, USA Today covered the story last week, and several websites and bloggers have taken the issue up as well (here, here, and here, for example). Let's hope that the increased attention will exert some pressure to get these bills back on track, so that this important legislation can become law, to the benefit of citizen journalists, traditional journalists, and the public alike.

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