Efforts to Amend US FOIA Law Moving Steadily Along

24 July 2014

Legislation to solve what many openness advocates say is a major problem with the way government officials interpret the US Freedom of Information Act seems to be progressing well, with three recent positive bits of information emerging.

First, the Senate Judiciary Committee is likely to vote on proposed FOIA amendments in September, FreedomInfo.org has learned.

Second, the main sponsor of the House bill “is supportive of the additional language to curb exemption abuses included in the introduced version of the Senate legislation,” according to a statement to FreedomInfo.org from the staff of Rep. Darrell Issa, the Republican chairman of the Oversight and Government Reform Committee.

Issa’s statement makes clear that he supports reining in overuse of the so-called deliberative process exemption even though such a provision was not contained in the House bill.

Third, with time short because of upcoming elections, the bipartisan staffs of the House and Senate committees already are holding what were termed “productive bipartisan, bicameral discussions” to smooth the consolidation of the two bills for passage.

The bill (HR 1211) which zoomed through the House unanimously in February is less controversial than the Senate bill (S 2520) because of a proposal in the Senate bill to restrict the government’s use of the exemption, b(5), which is designed to protect the process of deliberation within the executive branch.

US openness advocates have complained that this exemption is being applied incorrectly and too frequently.

The Senate bill, sponsored by the Senate Judiciary Committee Chairman, Democrat Patrick Leahy of Vermont and Republican Senator John Cornyn of Texas, would authorize federal judges to decide whether “the agency interest in protecting the records or information is not outweighed by a compelling public interest in disclosure.”

Also, the deliberative-process exemption would not apply for any discussion that occurred more than 25 years ago.

The Judiciary Committee is expected to announce soon that the bill will be considered, “marked-up” in US lingo, after Congress’s August break, according to congressional and public interest group sources. A Judiciary official said she could not confirm any announcement.

Although the House bill does not contain such a provision, it has Issa’s support, his staff confirmed in a message to FreedomInfo.org reading:

The Senate bill contains many of the key reforms, including a presumption of openness and a strengthened role for the FOIA Ombudsman, which passed the House unanimously earlier this year. Chairman Issa is supportive of the additional language to curb exemption abuses included in the introduced version of the Senate legislation.

Issa’s staff stressed that “sending substantive FOIA reform to the President’s desk remains a top legislative priority for Chairman Issa.”

Former Obama Official Opposes Change

The proposed Senate legislation on the b(5) exemption recently was criticized by a top former Obama administration.

The Obama administration has yet to take a formal position.

Supporters of the bill countered by saying the Senate bill would codify President Obama’s stated policy, which they complain is not being followed by the bureaucracy.

They reacted sharply to a July 9 article by Cass Sunstein, the former head of the regulatory review office at the White House, who argued that the Senate legislation would have a “chilling” effect on internal policy discussions.

“Both of these changes would be mistakes,” argued Sunstein, now a Harvard law school professor. He continued:

True, 25 years is a long time, but if officials know that their communications will eventually be made public, they will be less likely to be candid. And if those officials know that federal judges might decide, in any case, whether the public interest in disclosure outweighs an agency’s interest in confidentiality, they will silence themselves still more. Judges have their own biases, sometimes even political biases, and cannot always be counted on to strike the right balance.

The result? Whether the topic is homeland security, deregulation, climate change, obesity, immigration reform, health care or highway safety, the normal processes of internal debate and discussion would likely be impaired.

His column in Bloomberg View generated criticism of his record and of his position from Nate Jones, FOIA Coordinator, National Security ?Archive (The Archive is the parent organization of FreedomInfo.org), Patrice McDermott, Executive Director, ?OpenTheGovernment.org, and Anne Weismann, Chief Counsel, Citizens for?Responsibility and Ethics in Washington – CREW.

They wrote in part:

Mr. Sunstein’s position should come as no surprise ?to those familiar with his work as head of OMB’s Office of Information and Regulatory Affairs. Under his leadership, the regulatory clearinghouse was shrouded in secrecy and became the? place where controversial regulations went to die, with little or no public? accountability.

Even more noteworthy, Mr. Sunstein’s remarks are out?of step with the administration in which he served. President Obama began his first term with a pledge to be the most transparent administration in history. Attorney General Holder followed up several?months later with a policy directive that made disclosure the default under the FOIA, especially when it comes to internal government deliberations. Agencies were directed to invoke Exemption 5,?which protects internal government deliberations, sparingly. If anything, the proposed legislation codifies what already should be agency practice.

Top Agenda Point

Abuse of the b(5) deliberative process exemption has risen to the top of FOIA reformers’ agenda.

Examples of its use include the denial of access to sections of a 1994 State Department memo on the size of the Rwandan death toll, as described in an article by Lauren Harper in Unredacted, a blog by the Archive.

The exemption was used to block access to a 30-year-old history of the US “Bay of Pigs” invasion of Cuba, the NSA wrote.

After a brief dip at the beginning of the Obama administration, the government’s use of the b(5) exemption has skyrocketed. In fiscal year 2013, agencies cited the fifth exemption 81,752 times, to deny 12.05 percent of all FOIA requests, according to statistics compiled by the Associated Press.

According to a statement by Open the Government, “Over time, the government has expanded the scope of material they consider subject to Exemption 5 to the point that it covers practically anything that is not a final version of a document.”

Other Features of House, Senate Bills

The Senate bill, the FOIA Improvement Act of 2014, also strengthens the FOIA ombudsman, the Office of Government Information Services, promotes more proactive online access to government information, and pushes back on agency attempts to weaken the 2007 Open Government Act’s fee improvements (also authored by Cornyn and Leahy). The Senate bill directly addresses regulatory shortcomings exposed by three National Security Archive government-wide FOIA audits.

The FOIA Oversight and Implementation Act, passed by the House in February 2014, also strengthens OGIS, encourages proactive disclosure, and requires agencies to update their FOIA regulations within 180 days of the bill’s passage.

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