House and Senate conference negotiations on legislation calling for sweeping changes to the Freedom of Information Act have hit a sticking point, increasing chances the widely supported effort to improve government transparency will not be successful this year, staffers familiar with discussions said.
Backers of the Senate bill, sponsored by Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. John Cornyn, R-Texas, have urged House Oversight and Government Reform Chairman Henry Waxman, D-Calif., to push through their measure, which includes compromise language to address objections that Sen. Jon Kyl, R-Ariz., raised on behalf of the Justice Department. But Waxman is resisting that step in part due to pay/go budget concerns, a Judiciary Committee aide said. The sides failed to work out differences at Friday's meeting.
"We are very disappointed with how things went in that meeting," the Judiciary Committee aide said. "We are disappointed the Senate bill is not able to move forward in the House. ... Now it's starting to look like something might not happen. We're butting up against the end of the year."
Failure to quickly reconcile and pass the measures would disappoint backers who say the legislation, the first significant FOIA overhaul in a decade, includes needed fixes to problems that contribute to an increasing lack of responsiveness to FOIA requests by federal agencies. Both bills passed with large veto-proof majorities. The measures would both increase penalties on agencies that fail to respond to FOIA requests within 20 days. Both create an ombudsman to mediate FOIA disputes and an office within the National Archives focused on FOIA issues.
But the measures differ over how to help requesters recover attorney fees if they succeed in suing to force release of information. Agencies now pay litigants' fees only after losing in court. Critics say some agencies exploit that provision by releasing material just before an impending decision in an effort to drain the resources of information requesters. Both bills address that concern by allowing recovery of fees if the agency changes its stance after litigation starts.
But while the House requires the payments come from appropriated funds, the Senate bill does not say where the money would originate. That may cause a violation of pay/go rules if the House takes up the Senate bill. The bills also differ in defining who qualifies as media eligible for FOIA fee waivers, with the House using a more inclusive definition to determine which nonprofits and bloggers could get waivers.
The Judiciary Committee aide acknowledged shortcomings in the Leahy-Cornyn bill, but argued that only the compromise Senate bill would ensure a quick passage. "There are still problems we need to solve," the aide said. "But it's a good first step." Patrice McDermott, director of OpenTheGovernment.org, an umbrella group of organizations advocating greater government transparency, said the "clock is running" for passage of the bill.
"The ball in the House's court at the moment," said McDermott. "I think the Senate side is waiting for a proposal from the House on the pay/go issue in particular."