Dispatches from the Creation Wars

I knew that judicial nominees could be blocked by a senator from their home state (a procedure called blue-slipping), but I had no idea a bill could be blocked from a floor vote by an anonymous hold. That’s what Patrick Leahy says is happening to a very good piece of legislation that reforms the Freedom of Information Act to make government documents more accessible:

Following up on their efforts last Congress, Leahy and Senator John Cornyn (R-Texas) teamed up again this year to introduce the “Openness Promotes Effectiveness in our National Government Act” (the “OPEN Government Act”) S.849. The bill, which has broad bipartisan support, won the approval of the Senate Judiciary Committee in April, but its passage in the full Senate is being delayed by an anonymous hold.

“It is both unfortunate and ironic that this bipartisan bill, which promotes sunshine and openness in our government, is being hindered by a secret and anonymous hold. This is a good government bill that Democrats and Republicans alike, can and should work together to enact,” said Leahy.

As someone who is currently involved, along with Wes Elsberry, in trying to pry documents out of a government agency through the FOIA, I can tell you that this reform is very much needed. Under the Bush administration, less than 25% of all FOIA requests are actually fulfilled, but even before that the average was only about half. As currently written, the FOIA has lots of little loopholes and exemptions that allow the government to stall for months and even years on your request, throwing red tape in your face and forcing you to file a lawsuit in order to get what should already be available to you. Here’s the text of the act:

Sec. 1. Short Title. The Open Government Act of 2007.

Sec. 2. Findings. The findings reiterate the intent of Congress upon enacting the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended, and restate FOIA’s presumption in favor of disclosure.

Sec. 3. Protection of Fee Status for News Media. This section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear that independent journalists are not barred from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity. In determining whether to grant a fee waiver, an agency shall consider the prior publication history of the requestor. If the requestor has no prior publication history and no current affiliation with a news organization, the agency shall review the requestor’s plans for disseminating the requested material and whether those plans include distributing the material to a reasonably broad audience.

Sec. 4. Recovery of Attorney Fees and Litigation Costs. This section, the so-called Buckhannon fix, amends 5 U.S.C. 552(a)(4)(E) to clarify that a complainant has substantially prevailed in a FOIA lawsuit, and is eligible to recover attorney fees, if the complainant has obtained relief through a judicial or administrative order or if the pursuit of a claim was the catalyst for the voluntary or unilateral change in position by the opposing party. The section responds to the Supreme Court’s ruling in Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598 (2001), which eliminated the “catalyst theory” of attorney fee recovery under certain Federal civil rights laws. FOIA requestors have raised concerns that the holding in Buckhannon could be extended to FOIA cases. This section preserves the “catalyst theory” in FOIA litigation.

Sec. 5. Disciplinary Actions for Arbitrary and Capricious Rejections of Requests. FOIA currently requires that when a court finds that agency personnel have acted arbitrarily or capriciously with respect to withholding documents, the Office of Special Counsel shall determine whether disciplinary action against the involved personnel is warranted. See 5 U.S.C. 552(a)(4)(F). This section of the bill amends FOIA to require the Attorney General to notify the Office of Special Counsel of any such court finding and to report the same to Congress. It further requires the Office of Special Counsel to report annually to Congress on any actions taken by the Special Counsel to investigate cases of this type.

Sec. 6. Time Limits for Agencies to Act on Requests. The section clarifies that the 20-day time limit on responding to a FOIA request commences on the date on which the request is first received by the agency. Further, the section states that if the agency fails to respond within the 20-day limit, the agency may not then assert any FOIA exemption under 5 U.S.C. 552(b), except under limited circumstances such as endangerment to national security or disclosure of personal private information protected by the Privacy Act of 1974, unless the agency can demonstrate, by clear and convincing evidence, good cause for failure to comply with the time limits.

Sec. 7. Individualized Tracking Numbers for Requests and Status Information. Requires agencies to establish tracking systems by assigning a tracking number to each FOIA request; notifying a requestor of the tracking number within ten days of receiving a request; and establishing a telephone or Internet tracking system to allow requestors to easily obtain information on the status of their individual requests, including an estimated date on which the agency will complete action on the request.

Sec. 8. Specific Citations in Exemptions. 5 U.S.C. 552(b) (3) states that records specifically exempted from disclosure by statute are exempt from FOIA. This section of the bill provides that Congress may not create new statutory exemptions under this provision of FOIA unless it does so explicitly. Accordingly, for any new statutory exemption to have effect, the statute must cite directly to 5 U.S.C. 552(b) (3), thereby conveying congressional intent to create a new (b) (3) exemption.

Sec. 9. Reporting Requirements. This section adds to current reporting requirements by mandating disclosure of data on the 10 oldest active requests pending at each agency, including the amount of time elapsed since each request was originally filed, and requires additional breakdowns depending on the length of delay. This section further requires agencies to calculate and report on the average response times and range of response times of FOIA requests. (Current requirements mandate reporting on the median response time.) Finally, this section requires reports on the number of fee status requests that are granted and denied and the average number of days for adjudicating fee status determinations by individual agencies.

Sec. 10. Openness of Agency Records Maintained by a Private Entity. This section clarifies that agency records kept by private contractors licensed by the government to undertake recordkeeping functions remain subject to FOIA just as if those records were maintained by the relevant government agency.

Sec. 11. Office of Government Services. This section establishes an Office of Government Information Services within the Administrative Conference of the U.S. Within that office will be appointed a FOIA ombudsman to review agency policies and procedures, audit agency performance, recommend policy changes, and mediate disputes between FOIA requestors and agencies. The establishment of an ombudsman will not impact the ability of requestors to litigate FOIA claims, but rather will serve to alleviate the need for litigation whenever possible.

Sec. 12. Accessibility of Critical Infrastructure Information. This section requires reports on the implementation of the Critical Infrastructure Information Act of 2002, 6 U.S.C. 133. Reports shall be issued from the Comptroller General to the Congress on the number of private sector, state, and local agency submissions of CII data to the Department of Homeland Security and the number of requests for access to records. The Comptroller General will also be required to report on whether the nondisclosure of CII material has led to increased protection of critical infrastructure.

Sec. 13. Report on Personnel Policies Related to FOIA. This section requires the Office of Personnel Management to examine how FOIA can be better implemented at the agency level, including an assessment of whether FOIA performance should be considered as a factor in personnel performance reviews, whether a job classification series specific to FOIA and the Privacy Act should be considered, and whether FOIA awareness training should be provided to federal employees.

This bill needs to be passed immediately, followed by a bill to do away with “anonymous holds” on legislation.


  1. #1 fusilier
    May 28, 2007

    I have a sneaking suspicion that an “anonymous hold” is not law, but a Senate (or House) Rule. As such, it could be changed tomorrow by the majority party. Since Sen. Leahy is in the majority, one is forced to wonder why he just doesn’t go to his majority leader, Sen. Reid, and ask him to schedule a vote on the change.

    With apologies to The Who:
    “Here’s to the new boss
    “Same as the old boss,
    “We just got fooled again.”

    (cynical? moi?!?!)

    James 2:24

  2. #2 Christopher O'Brien
    May 28, 2007

    From my perspective at the US Forest Service the largest impediment to completing FOIA requests is lack of staff and far too many “first priority projects” that have to be completed with limited time and budgets. I’ve been working on a FOIA request for a couple of months now, and quite frankly, I get to it when I can – I have no funding for someone else to work on it. Granted, these are not high level national interest issues, but changes in FOIA for the larger things will certainly “run down hill”. I’m not suggesting that FOIA is not in need of change (I agree that it is) jus that there is another piece of this that gets neglected: no budget, no staff, and that might be why many typical FOIA requests aren’t getting filled. Although probably not at work here since the bill seems to have been blocked, but many of us think there is a concerted effort to de-fund land management agencies in particular to make them less efficient and thereby demonstrate to the public that we’d be saving money by getting rid of them.

  3. #3 Ginger Yellow
    May 28, 2007

    Don’t take this the wrong way, but you should be thankful FOIA is as good as it is. Here in the UK we only got a massively watered down FOIA five years ago, with loads of blanket exemptions, and even the government has been backpedalling even on that. Just last week parliament voted for an amendment that exempts MPs from disclosure rules. We can’t even find out what they’ve put on expenses. It’s become a sick joke.

  4. #4 Hrafn
    May 28, 2007

    What positive purpose do ‘anonymous holds’ serve? They appear to be a profoundly anti-democratic device, and to be tailor-made for ensuring that the ‘tail wags the dog’ at every conceivable opportunity.

  5. #5 Jim Lippard
    May 28, 2007

    There was a “secret hold” on the earmark database bill last year–Talking Points Memo organized a mass call-in to readers’ senators to ask if they were responsible, which resulted in identifying the senator responsible–Sen. Ted Stevens of Alaska.

  6. #6 kehrsam
    May 28, 2007

    There is a simple fix available, assuming that sufficient support for the bill exists: Attach it to various Appropriation bills as they come through the House (the Point of Order against legislating on an Appropriation would have to be waived by the Rule). Or it could be attached to some unrelated piece of legislation (not that I support that kind of behavior).

  7. #7 flatlander100
    May 28, 2007

    There is a simple fix… if the Senators want to fix it. I suspect they don’t want to fix it. I suspect most of them rather enjoy the power to “hold” any legislation up, anonymously, while negotiating for whatever bit of pork they are negotiating for in order to release the hold. The boys in the club [girls too] hate surrendering their prerogatives. Recall the recent fairly significant but none the less watered down “lobbying reform” bill that just cleared both houses. If news reports are to be believed, it was gotten through the House at least by the insistence of 30 or so recently elected members who campaigned on ending the “culture of corruption.” The incumbents in the Dem. majority were fighting hard to keep their lobbying perks and access to lobby-raised money exactly as it was. The leadership forced them to cave, and once people had to vote on the record, the bill passed by an overwhelming majority, but a serious effort by incumbent Dems was made not to merely water it down, but soak it down, in committee before it go to the floor for recorded votes.

    So there is a relatively easy fix if they want to fix it. They don’t.

  8. #8 Crudely Wrott
    May 28, 2007

    Another example of the axiom that say the more complicated you make a procedure under your oversight the more closely you can manage it’s mass appeal and suck up to your (cough, cough) superiors. In doing so you lubricate a process that brings rewards to the undeserving, punishment to non-offenders and a dreary malaise to the voting public.

    Oh, shit. You am us.

    Vote intelligently.

  9. #9 FishyFred
    May 28, 2007

    Since Sen. Leahy is in the majority, one is forced to wonder why he just doesn’t go to his majority leader, Sen. Reid, and ask him to schedule a vote on the change.

    Probably because it’s Paul Byrd and Ted Stevens again. Don’t you remember them both placing secret holds on a similar bill last year?

  10. #10 Pieter B
    May 28, 2007

    The Rules of the Senate require a 2/3 supermajority to change the Rules of the Senate. Getting one of those isn’t easy.

  11. #11 Martin Grant
    May 29, 2007

    >The Rules of the Senate require a 2/3 supermajority to change the Rules of the Senate. Getting one of those isn’t easy.

    Really? What about a law making the rule illegal. Laws are a simple majority (assuming no filibuster) and I doubt senate rules trump laws.

  12. #12 Martin Grant
    May 29, 2007

    >The Rules of the Senate require a 2/3 supermajority to change the Rules of the Senate. Getting one of those isn’t easy.

    Really? What about a law making the rule illegal (or changing the rule by law). Laws are a simple majority (assuming no filibuster) and I doubt senate rules trump laws.

  13. #13 kehrsam
    May 29, 2007

    Really? What about a law making the rule illegal (or changing the rule by law). Laws are a simple majority (assuming no filibuster) and I doubt senate rules trump laws.

    It doesn’t work that way. 1) In order to pass a law, it has to be approved by the Senate at some point. Even if included in another bill, there would be a valid Point of Order against it based upon changing Senate rules.

    2) It would also require the input of the House, and the Senate isn’t about to let those guys muscle in on their action. Nice try.

  14. #14 Hrafn
    May 29, 2007

    The Rules of the Senate require a 2/3 supermajority to change the Rules of the Senate. Getting one of those isn’t easy.

    This cannot be the case. The ‘nuclear option’ of a rule-change removing filibusters only required a simple majority, otherwise the compromise deal that was organised wouldn’t have been needed (as it wouldn’t have received a supermajority without the Democrats).

  15. #15 kehrsam
    May 29, 2007

    Hrafn: A good discussion of the matter can be found here: http://www.cato.org/research/articles/rotunda-030707.html

    The fact is, the courts will never touch this type of issue, so we are left in no-mans-land: Does it require a simple majority, or a super-majority? Since the point of order remains in place, I have to believe in practice the super-majority controls. Good point.

New comments have been disabled.