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Fingers Crossed for the Faster FOIA Act, Again…

May 31, 2011

Last Tuesday, the Senate passed the Faster FOIA Act of 2011. The government openness community is no doubt excited about this development; however, before we start up the paean of sunshine, we should consider the history and potential shortcomings of this bill.

This is not the first appearance of the Faster FOIA Act. The Senate Judiciary Committee approved the bill for the third time since 2005. Last year, the Senate passed a virtually identical bill and the House version was referred to committee. Sadly, that was the end of the line for the Faster FOIA Act of 2010.

During Sunshine Week earlier this year, Senators Patrick Leahy and John Cornyn re-introduced the Faster FOIA Act. Citing the 2011 Knight Open Government Survey, Senator Leahy stated, “12 of the agencies surveyed by the National Security Archive had pending FOIA requests that were more than six years old, according to the report. Senator Cornyn and I believe that these delays are simply unacceptable. And that is why we are introducing this bill.” The bill would create a commission tasked with five objectives:

  • Identify methods that will help reduce delays in processing Freedom of Information Act (FOIA) requests submitted to federal agencies
  • Ensure the efficient and equitable administration of FOIA throughout the federal government
  • Examine whether the system for charging fees for such requests and granting waivers of such fees needs to be reformed
  •  Determine why the government’s use of FOIA exemptions increased during FY2009, whether the increase contributed to delays, what efforts were made by federal agencies to comply with President Obama’s January 21, 2009 Presidential Memorandum on Freedom of Information Act Requests, and whether those efforts were successful
  • Make recommendations on how the use of exemptions may be limited

The recommendations to come out of this commission would be fascinating and, hopefully, a step towards concrete reform. This also where a potential shortcoming of this bill reveals itself: who is going to listen to the commission’s report or would the commission have any leverage to help enact reform? The national debt is a major national issue, but the commission formed by President Obama to address the debt received tepid response to its report. The over-politicization of the national debt debate is likely a major factor in the cautious approach to that commission’s recommendation. Fortunately, the Faster FOIA Act is a far less divisive topic.

The Faster FOIA Act is supported on a bipartisan basis. The Senate bill is co-sponsored by Senator John Cornyn, a Republican, and passed the Senate Judiciary Committee unanimously. In the House of Representatives, the Faster FOIA Act of 2010 had an intriguing co-sponsor: Michele Bachmann. The representative from Minnesota is well-known for her figurehead status within the Tea Party political movement. Ms. Bachmann’s support of last year’s Faster FOIA Act is another positive sign. The House version of the 2011 bill has not found a co-sponsor, yet.

Bipartisan support at this level could indicate that both parties generally find the prospect of FOIA reform favorable, and, especially in the current climate of desperation to shrink the government, the commission would not be a waste of resources. Nevertheless, this bill has a record of losing traction and spinning its wheels.

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