More than two and one-half years after proposed FOIA reform legislation was introduced in both Houses of Congress, the House subcommittee holding jurisdiction over FOIA matters has begun active consideration of such remedial legislation.
The House Government Operations Committee's Subcommittee on Government Information, Justice and Agriculture, chaired by Cong. Glenn English (D. Okla.), held a series of hearings on FOIA reform in late May, June and early August.. Before the subcommittee for consideration was S. 774, the comprehensive package of FOIA reform amendments supported by the Administration which was unanimously passed by the Senate in February of this year. (For descriptions of the provisions of S. 774 as approved by the Senate, see the Summer 1983 issue of FOIA Update, at pp. 1-2, and the Winter 1984 issue of FOIA Update, at p. 6.)
Chairman English chose to wait until May before scheduling FOIA reform hearings before his subcommittee and to hear testimony from numerous groups in opposition to S. 774 during a first round of hearings held over the course of three days scattered in late May and June. Notwithstanding the compromise on S. 774 that had been reached in the Senate, a series of media and public interest group representatives testified strongly against making any major changes in the statute, particularly those proposed in the law enforcement area.
Somewhat less controversial, but nonetheless opposed by some major public interest organizations, were the "business procedures" provisions of the bill, which were strongly advocated by several representatives of the business community on May 30.
Only after the first hearings were completed were Administration witnesses given an opportunity to testify in support of S. 774. Unfortunately, Chairman English delayed so long into the month of June before even agreeing to hear any Administration witnesses that it became impossible due to schedule conflicts to hold a final hearing before the July recess.
Consequently, the final day of hearings on S. 774 was held by Chairman English on August 9. The principal witnesses on this final day were Deputy Attorney General Carol E. Dinkins and FBI Director William H. Webster, who strongly urged at Chairman English to act promptly and favorably upon the Senate-passed bill.
Deputy Attorney General Dinkins, in what was her first congressional testimony since assuming the number two Justice Department position, reminded Chairman English that "this Administration is firmly committed to the faithful implementation of the Freedom of Information Act by all federal agencies," but that "a strong case has already been made" that the Act is in need of reform.
Addressing most particularly the law enforcement provisions of S. 774, FBI Director Webster reiterated the need for broader exemption protection within Exemption 7, as well out as the FBI's critical need for at least short-term withholding of all organized crime files on a categorical basis. He also welcomed Chairman English's suggestion that perhaps the time had come for law enforcement agencies to receive some new type of protection against having to "tip off" subjects through the FOIA to the very existence of ongoing law enforcement investigations on them.
Other witnesses before the subcommittee included representatives of the American Bar Association, the Administrative Conference of the United States, and the American Civil Liberties Union, each of which supported certain provisions of S. 774. Speaking for the latter organization, however, legislative counsel Allan Adler emphasized that S. 774 as a whole was simply not acceptable to the ACLU in its existing form.
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The prospects of any productive action on S. 774 by Chairman English's subcommittee during the relatively few remaining days of this Congress appear to be quite dim. During the early stages of the hearing process, Chairman English stated publicly that he did not foresee S. 774 reaching the House floor out of his subcommittee this year. However, at the conclusion of the last day of hearings on August 9, he appeared willing to advance at least some form of S. 774 through the House's legislative process.
At the same time though, the subcommittee staff has let it be known that any FOIA reform bill approved by the subcommittee this year would not contain any provision deemed to be "too controversial."
Consequently, although active negotiations on possible FOIA reform legislation were expected to continue throughout the remainder of August and into September, the reaching of a true compromise among all interested groups before Congress' targeted October 5 adjournment was seen as highly unlikely.
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Meanwhile, in a closely related development, Chairman English's subcommittee has also acted upon the CIA's special FOIA relief bill, H.R. 5164, which has been proceeding along an entirely separate track toward passage in both Houses of Congress. See FOIA Update, Summer 1983, at 2; FOIA Update, Winter 1984, at 6.
Although the CIA FOIA bill originated in, and was in turn approved by, the full intelligence committees in both the Senate and the House, it received "joint referral" to Chairman English's subcommittee as well. Consequently, it came before the subcommittee for approval this past July, whereupon it was decided to incorporate into it the language of H.R. 4696, a bill introduced by Chairman English designed to preclude any agency from applying the Privacy Act as an Exemption 3 statute. See FOIA Update, Winter 1984, at 6.
As a result of this last-minute merger of the controversial "Privacy Act/Exemption 3" bill with the fully approved CIA bill, a linkage which the Justice Department has thus far opposed, the fate of special FOIA relief for the CIA is now somewhat in doubt. As of the end of August, it appeared that the month of September would see a great deal of controversy in surrounding this combined bill.
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