By: DEBRA GERSH HERNANDEZ
THE ELECTRONIC FREEDOM of Information Act has passed both houses of Congress and is expected to be signed into law by the president.
Fittingly, after years of effort, the EFoIA provisions passed in the 30th anniversary year of the original Freedom of Information Act, a coincidence many people worked diligently to achieve.
For Sen. Patrick Leahy (D-Vt.), a longtime advocate of such legislation, this “was his priority in this Congress. He wanted very much to pass it into law,” said Beryl Howell, senior counsel to the Senate Judiciary Committee’s Subcommittee on Antitrust, Business Rights and Competition.
“I think when the Clinton administration came into office, he [Leahy] was very heartened by some of the steps the attorney general took in figuring out how much backlog there was, how many backlogs of FoIA requests there were in federal agencies, and in setting a policy of FoIA access,” Howell told those at a panel discussion of EFoIA during the recent Society of Professional Journalists conference.
“And it was, therefore, with some shock that we found it took quite a lot within the administration to get this bill through,” she added.
In a statement released after the bill was passed by both houses, Leahy noted, “Electronic access is a logical extension of the freedom of information law. More and more today, to be well-informed, you have to have computer access and information. You can’t have an effective FoIA today without it.
“Saying you want a freedom of information law without access to electronic records is like saying you’re willing to be a little bit pregnant,” Leahy remarked.
As the pressure to complete action in the Senate and House heated up during the final days of legislative action in September, negotiations that seemed complete were reopened, Howell said.
After “another flurry of activity and negotiations,” the bills passed.
What is noteworthy about the passage, Howell added, is that EFoIA passed 402-0 in the House and unanimously in the Senate, with a letter of support from the administration.
“So, in the end, we were able to get everybody on board, put aside any partisan bickering ? which has really been a hallmark of this Congress, certainly between the Congress and the administration ? and vote on the legislation,” she said.
As the bill was poised for action on the House floor, the idea that language to declare the National Security Council an agency subject to FoIA was raised by journalist Scott Armstrong during a Freedom of Information Act conference, hosted by the American Society of Newspaper Editors and other groups at the Freedom Forum.
Armstrong proposed taking the amended language to Leahy and other EFoIA advocates on the Hill.
The idea was tabled, with about half the
attendees voting against it, many fearing it would lead to an inevitable veto of the bill by President Clinton.
Armstrong’s proposal, which stems from a recent court decision, and where he intends to follow through with it, as well as other events surrounding the bill’s passage, will be looked at further in next week’s E&P.
“What this legislation does is it takes a number of steps to help make access to electronic records easier for journalists to use,” Howell explained at the SPJ meeting.
According to a summary of the legislation provided by Howell, the EFoIA would add electronically stored information, including computer database records, to the definition of a “record.”
Any material that an agency must have available for public inspection and copying, such as that found in agency reading rooms, must be available online, as well as in hard copy.
They also must provide copies of records released in response to earlier FoIA requests for topics of continual interest, such as the Kennedy assassination.
Where redactions are made on electronic records, the agencies must indicate the extent of the deletions and where in the text they were made.
Information must be provided in the form specified by the requester, not the agency, if available, and as long as a reasonable electronic search does not disrupt the agency’s computer systems.
To address delays, “the single most frequent complaint about the operation of the FoIA,” the EFoIA sets up a multitrack processing system, whereby agencies can process simple requests more quickly, rather than dealing with all requests on a first-in, first-out system.
Further, agencies will be allowed an extra 10 working days to process requests under “unusual circumstances,” but the requester must be informed of the reasons for the delay. A court can grant additional time for “exceptional circumstances,” as well, but those do not include agency backlogs.
The normal time frame for responding to requests will be expanded to 20 days from 10 to help agencies reduce their FoIA backlogs.
Requesters showing a “compelling need” for expedited access will be allowed such privilege. Such need occurs when failure to release the information would result in a threat to someone’s life or physical safety; or when “a person primarily engaged in disseminating information” requests information about a federal government activity for which there is an urgency to inform the public.
As part of Congressional oversight, agencies will be required to publish annual reports about requests that were denied and why, the number of backlogged requests, and other processing data. This information also is to be available to the public online or in some electronic form.
Each agency also must maintain an index and description of information available electronically, as well as a handbook for how to obtain public information.