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FOIA processing may become shorter…soon!

The Freedom of Information ACT allows every American Citizen the right to know what the government is doing. In my Immigration practice we often file FOIA requests to receive copies of clients older immigration files, to allow us to plan future filings more carefully. In recent years this tool has become a waste of time. FOIA applications are now pending for more than 12 months in some cases even years.

Congress is closer than ever to enacting the most important legislation to ensure open government and access to public institutions in over a decade — thanks to the perseverance of two leading members of the Senate Judiciary Committee, Sens. Patrick Leahy and John Cornyn.

The Senate approved the Openness Promotes Effectiveness in our National Government Act, or OPEN Government Act, and the House passed its own version of FOIA reform. Advocates are encouraging Congress to send a bill to President Bush as soon as possible.

The OPEN Government Act contains a number of important provisions, but three problems addressed by the legislation are worth highlighting.


The OPEN Government Act contains a number of important provisions, but three problems addressed by the legislation are worth highlighting.

First, FOIA imposes strict deadlines — typically, 20 days — on the federal government to respond to citizen inquiries for information. But those deadlines are routinely ignored. According to a survey by the National Security Archive, 53 of 57 federal agencies reported backlogs in processing. At least 12 agencies admitted holding requests that have been pending for more than 10 years.

The OPEN Government Act will help ensure compliance with these deadlines by imposing real consequences on federal agencies for tardiness — inspired by similar mechanisms in Texas law.

Second, the law would help bring FOIA into the Internet world, by extending the same special “news media” status, currently enjoyed by traditional news organizations, to bloggers and other innovative, legitimate sources of news. It would also require agencies to establish tracking numbers for all FOIA requests, allowing citizens to monitor the status of their inquiries.

Third, FOIA is supposed to empower citizens by enabling them to file suit against recalcitrant agencies in court and, if their document request is valid, to recover the costs of their attorneys’ fees from the government. This is a critical provision; unlike in other lawsuits, there are no money damages for winning an FOIA claim, and thus, no other way to cover attorneys’ fees.

The OPEN Government Act offers hope that the spirit of openness that motivated the original drafters of FOIA will, at long last, become a reality. Let’s hope that this Act will become law, it will a much needed reform.