The broad FOIA amendment package supported by the Administration has taken a major step toward passage in the 98th Congress and is now expected to pass the Senate by the end of May or June.
After two days of hearings in late April, the Subcommittee on the Constitution of the Senate Judiciary Committee unanimously reported out a FOIA reform bill for further Senate approval. The new bill is almost identical to S. 1730, the broad FOIA reform bill which was approved unanimously by the Senate Judiciary Committee in the last Congress, but which went no further when the House refused to consider FOIA reform toward the end of the session.
Renewed consideration of FOIA reform began in the 98th Congress on March 11 when Sen. Orrin Hatch (R-Utah), chairman of the Constitution Subcommittee, reintroduced last year's compromise amendment package as S. 774. He was joined in this move by Sen. Strom Thurmond (R-S.C.), chairman of the Senate Judiciary Committee, and by Sen. Dennis DeConcini (D-Ariz.), another member of the Constitution Subcommittee who has provided support to FOIA reform in both Congresses.
In mid-March, Senators Hatch and DeConcini reached agreement with Sen. Patrick Leahy (D-Vt.) -- a subcommittee member who has in the past served as the spokesman for those opposed to the Administration's FOIA reform efforts--which led to the unanimous approval of S. 774 at the subcommittee level.
Testimony at the April hearings focused on the need for the many remedial measures included in S. 774, particularly the law enforcement provisions and new fees and time limits schedules. Administration spokesmen included FBI Director William H. Webster, who testified on the urgent need for the bill's law enforcement provisions, and Assistant Attorney General Jonathan C. Rose.
The Constitution Subcommittee's unanimous approval of S. 774 means the bill will move forward for full Judiciary Committee approval during the month of May and, it is expected, overwhelming approval by the Senate, perhaps before the Memorial Day recess. "With the committed support of Sen. Leahy," stated Sen. Hatch, "S. 774 should receive full bi-partisan support on the Senate floor and, I should think, in the House of Representatives as well."
Although its progress through the House cannot be predicted, it is expected that Senate approval of S. 774 should lead to prompt consideration there by the Government Information, Justice, and Agriculture Subcommittee of the House Government Operations Committee, which is chaired by Rep. Glenn English (D-Okla.). Those close to the negotiations between Hatch and Leahy in the Senate report that Sen. Leahy is now committed to supporting the full provisions of S. 774 through the House as well as the Senate and, if necessary, at a conference committee should the House pass a markedly different bill.
While the new S. 774 contains everything that was in the broad amendment package approved as a compromise last year, it does not include an extensive revision of Exemption 4. An agreement on the precise wording of such an amendment could not be reached last year, so the issue was reserved for consideration on the Senate floor at that time. This year, it has been agreed that the full Senate will not attempt to address this issue and that the precise formulation of any broad Exemption 4 revision will have to be hammered out between business and public interest groups in the House. S. 774 does contain, however, the notice and challenge provisions that would provide new mandatory procedural protections for business submitters.
Of greater interest to federal agencies, though, are the many substantive and procedural provisions that would provide needed reform in such areas as fees; time limits; Exemption 2; Exemption 6; protection of law enforcement records (Exemption 7); new protections such as of technological data (new Exemption 10) and the prevention of the FOIA's use for discovery; etc. for a full description see FOIA Update, June 1982, at 1-2.)
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Update on FOIA Case List Citations
OIP Guidance: The Privacy Act as an Exemption 3 Statute
FOIA Counselor: Waiver of FOIA Exemptions
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