Legislation in the 109th Congress

Includes: PL 109-282, S.394, S. 1181, S. 589, H.R. 2331, H.R. 5112, S. 662, S. 2180, H.R. 839, S. 2695, S. 2831, H.R. 6219, H.R. 4925, H.R. 1317

P.L. 109-282, the Federal Funding Accountability and Transparency Act of 2006
signed into law on September 26, 2006

*Directs the Office of Management and Budget (OMB), by January 1, 2008, to ensure the existence and operation of a single searchable website accessible by the public at no cost that includes for each federal award of federal financial assistance and expenditures, including the amount, information describing the transaction, and the name and location of the recipient and the primary location of performance.

S.394, the OPEN Government Act of 2005/ H.R. 867, the OPEN Government Act of 2005
Passed by the Senate Committee on the Judiciary on September 21, 2006; passed by the House Subcommittee on Government Management, Finance, and Accountability on September 27, 2006.

*Protects fee exemptions for requesters who have no institutional affiliation or prior publication history by directing agencies to consider the requester’s plans for informing the public in deciding to grant a fee waiver.
*Forces agencies to pay the legal costs incurred by requesters when a lawsuit leads an agency to release documents.
*Requires agencies to assign a tracking number to each request and allow the public to check the status of requests by the Internet or telephone.
*Establishes an ombudsperson outside of the agencies to objectively review agencies’ implementation of FOIA, recommend changes to agencies’ policies and procedures, and mediate disputes between requesters and agencies.
*Requires reports to Congress on investigations and enforcement actions that the Office of Special Counsel takes against agencies for arbitrarily or capriciously denying FOIA requests.
*Requires agencies to respond to FOIA requests within 20 business days from the date a request is received and limits what the agency can withhold if they fail to meet the 20-day deadline to information withheld for national security or privacy.
*Requires the Government Accountability Office, the independent investigatory agency of Congress, to report annually on the number of times industry uses the Critical Infrastructure Information program to stamp information as secret.

S.1181, Enacting Section 8 Of The Open Government Act
Passed by the Senate on June 24, 2005.

*Ensures an open and deliberate process in Congress, by providing that any future legislation to establish a new so-called “(b)(3) exemption” to the federal FOIA law must specifically cite section (b)(3) of FOIA if it is to take effect.

S.589, the Faster FOIA Act of 2005
Passed by the Senate Committee on the Judiciary on March 17, 2005.

*Establishes a 16-member Commission on Freedom of Information Act Processing Delays to conduct a study concerning methods to reduce delays in processing FOIA requests and ensure the efficient and equitable administration of FOIA throughout the Government, and requires the study to address whether FOIA fees and fee waivers need to be reformed.

H.R.2331, the Restore Open Government Act of 2005
Introduced on May 12, 2005.

*Overturns the “Ashcroft Memo” restricting release of information under FOIA and the “Card Memo” urging agencies to stretch FOIA exemptions to withhold any “sensitive” information; restores the presumption that information should be released to the public absent some finding of harm.
*Bans the use of unnecessary control markings and requires the archivist to report on the use of these “pseudo-classification” markings throughout the federal government.
*Revokes President Bush’s EO 13233, which greatly expanded the allowable use of privilege claims; reinstates President Reagan’s EO 12667.
*Requires Presidential advisory committees to reveal their meetings and communications with private parties.
*Permits the Archivist to charge an agency a specified fee to cover costs required for activities of the Public Interest Declassification Board.
*Allows citizens to collect attorney fees and other litigation costs reasonably incurred in any case seeking information under FOIA in which the complainant has substantially prevailed.
*Limits the broad FOIA exemption for critical infrastructure information created in the Homeland Security Act of 2002.

H.R.5112, the Executive Branch Reform Act of 2006
Passed by the House Committee on Government Reform on April 27, 2006.

*Requires all political appointees and senior officials in federal agencies and the White House to report the contacts they have with lobbyists and other private parties seeking to influence official government action.
*Strengthens conflict of interest rules for high-ranking political appointees, prohibits government employees from negotiating private employment with entities their duties effect, and lengthens the time period before former Members can lobby their former colleagues.
*Closes loopholes in the law governing when government procurement officials can be hired by companies to whom they
awarded contracts.
*Enacts whistleblower protections for national security personnel.
*Eliminates the use of unauthorized information control markings.
*Requires the federal government to disclose its role in funding
or disseminating messages to the American public.

S.622, the Restoration of Freedom of Information Act of 2005
Introduced in the Senate on March 15, 2005.

Limits the “critical infrastructure” FOIA exemption to information that is confidential business information and allows a provider to withdraw the confidential designation of a record at any time.

S.2180,Honest Leadership and Open Government Act of 2006
Hearing held by the Senate Committee on Homeland Security and Governmental Affairs on January 25, 2006.

*Extends the time period before former Members and high-ranking officials are allowed to lobby on issues related to their past government work and eliminates “floor privileges” for former Members registered to lobby.
*Requires public disclosure by Members of Congress and senior congressional staff of employment negotiations.
*Stop efforts like the “K Street Project” by banning efforts of members of Congress and staff to enforce partisan discipline in private organizations.
*Requires lobbyists to file electronic, quarterly reports. The report must contain information pertaining to efforts to stimulate grassroots support, previous work in the executive or legislative branches, and provide certification of the report with the possibility of criminal penalties for failing to submit a certified report. The bill also creates a searchable public database of lobbying reports.
*Bans lobbyists from giving gifts or travel to members or their staff.
*Establishes the Senate Office of Public Integrity.
*Establishes mandatory annual ethics training for congressional employees.
*Require conference committees to be open to the public and require conference reports to be publicly available on the Internet at least 24 hours prior to a vote.

H.R.839, Restore Scientific Integrity to Federal Research and Policymaking Act/ S. 1358
Introduced in the House on February 16, 2005; introduced in the Senate on June 30, 2005.

*Prohibits a federal employee from obstructing federally funded scientific research, censoring findings of federally funded scientific research, and disseminating scientific information known to be false or misleading.
*Prohibits appointments to federal advisory committees based on political litmus tests and strengthens the protections against conflict of interests on advisory committees.
*Expands whistleblower protections to federal employees who disclose allegations of political interference with science.
*Makes it clear that federal science-based agencies should establish the applicable standards for peer review of agency science.
*Requires the White House to make annual reports to Congress on changes to federal science policy.

S.2695, Federal Research Public Access Act of 2006
Introduced in the Senate on May 26, 2005.

*Commands agencies to require each fully or partially funded researcher to to submit an electronic copy of the final manuscript that has been accepted for publication in a peer-reviewed journal.
*Requires that the public has free, online access to each taxpayer-funded manuscript no later than six months after the article has been published in a peer-reviewed journal.

S.2831, Free Flow of Information Act of 2006
Hearings held by the Senate Committee on the Judiciary on September 20, 2006

*Provide a near-absolute privilege for the protection of confidential sources, with an exception only in cases of an “imminent threat to the national security.”
* Provides a qualified privilege for non-confidential information which could be overcome by clear and convincing evidence that (1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the federal government that has the power to issue a subpoena; (2) the news or information could not be obtained by any alternative means; and (3) there is an overriding public interest in the disclosure.

H.R.6219, Toxic Right-to-Know Protection Act
Introduced in the House on September 27, 2006.

*Prohibits EPA from modifying the toxic release inventory (TRI) by raising chemical release thresholds and making other changes to toxic release reporting requirements.

H.R.4925, Paul Revere Freedom to Warn Act
Introduced in the House on March 9, 2006.

*Gives all federal employees, federal contractor or subcontractor, or a corporate employee the right to file a complaint with the Department of Labor if they are retaliated against for reporting a national or homeland security concern, threat to public health and safety, or fraud, waste or mismanagement to their employer, GAO, a government Agency or Congress.
*Grants whistleblowers access to district court if the Department of Labor has not acted on the case within 6 months and entitles the whistleblower to compensatory damages such as reinstatement, back pay and legal fees, and punitive damages.
*Requires that all cases where the government prevents the case from being heard because it asserts its State Secrets privilege be automatically judged in favor of the whistleblower.
*Establishes retaliation as a punishable crime and institutes a penalty of up to 10 years in prison for such retaliation.

H.R. 1317, the Federal Employee Protection of Disclosures Act/ S.494
Reported to the House on June 29, 2005; passed by the the Senate Committee on Homeland Security and Governmental Affairs on May 25, 2005.

*Overturns the effect of Garcetti v. Ceballos on federal workers by codifying the legislative history of “any” protected disclosure, meaning the WPA applies to “any” lawful communication of misconduct.
*Restores the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.
*Makes permanent and provides a remedy for the “anti-gag statute” which prohibits the federal government from spending money on efforts to limit whistleblowing disclosures.
*Codifies protection against retaliatory investigations.
*Bars the President from imposing ex post facto “intelligence employee” status to strip employees of their merit system rights after they assert them by filing a lawsuit.
*Ends the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act by restoring all-Circuit review.
*Restores independent due process review of security clearance determinations for whistleblower reprisal.
*Provides specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff.
*Strengthens the Office of Special Counsel’s authority to seek disciplinary sanctions against managers who retaliate.
*Authorizes the Special Counsel to file friend of the court briefs.