50 US Groups Press Obama to Back FOI Legislation

23 October 2014

Concerned that the Obama administration has been largely mute on a pending bipartisan bill to reform the Freedom of Information Act, 50 groups Oct. 23 urged him to voice his support.

The bill has support from both Republican and Democratic legislators, has already passed the House and would appear to have a god chance of passage, but time is short. A post-election “lame duck” session could provide a window for swift passage, but two conservative senators have signaled plans to possible block legislative action.

The groups support a bill, the FOIA Improvement Act of 2014, introduced by Senators Patrick Leahy (D-Vermont) and John Cornyn (R-Texas). Click here to read the letter.

The letter calls for six reforms:

First, the presumption of disclosure must be codified if your commitment to an open government is to survive your presidency. Without this legislative mandate, the FOIA will continue to be subject to the political whims of whoever occupies the White House. Past administrations have reversed this presumption, yielding directives like that issued by former Attorney General John Ashcroft that set the default on withholding, with the promise the Department of Justice would vigorously defend agencies that refused to comply with FOIA requests.

Second, the foreseeable harm standard mandated by Attorney General Eric Holder’s March 19, 2009 memorandum to heads of all executive departments and agencies also must be codified. As with the presumption of openness, different administrations have either implemented or rescinded the requirement that material only be withheld where disclosure would cause a foreseeable harm to government interests. The FOIA is a statutory mandate that can be fulfilled only by codifying these essential elements.

Third, exemption 5 of the FOIA – which authorizes agencies to withhold inter- and intra-agency memoranda that fall within civil discovery privileges – must be amended to add a public interest balancing test, at least for material protected by the deliberative process privilege. As then- White House Special Assistant Steve Croley wrote in March 2011, reducing agency reliance on exemption 5 to withhold information from the public is part of the administration’s efforts to promote greater openness in government. Unfortunately, despite the strong FOIA policies you have mandated, the deliberative process privilege continues to be significantly overused, disserving the very interests your memorandum commits to advance. Adding a balancing test will mirror how the deliberative process privilege is treated for discovery purposes, where courts weigh the government’s interest in secrecy against the stated need for disclosure by the party seeking discovery. Unless the FOIA incorporates a similar balancing test, the public will continue to be denied access to information of critical public importance, even where secrecy serves at best only a very limited governmental interest.

Fourth, information created 25 or more years before the date of any FOIA request should not be subject to withholding under FOIA exemption 5. The FOIA should not be used to bar the public’s access to our nation’s history where the passage of time has significantly eroded, if not eliminated altogether, any valid governmental interest served by secrecy. Even for classified information your policy, reflected in E.O. 13526, recognizes no document should remain classified indefinitely. Further, a 25-year period far exceeds the 12 years of non-disclosure afforded the records of former presidents under the Presidential Records Act.

Fifth, the FOIA must be amended to implement the clear congressional intent of the 2007 FOIA amendments that agencies that delay responding to FOIA requesters past the statutory deadlines cannot charge fees. Congress added this provision to encourage timely responses. Nevertheless, the Department of Justice has advised agencies they may continue to charge fees past the deadlines if they have made a reduction in their backlogs, even if that reduction is by only one request. Such a position directly conflicts with the clear legislative language and intent. Further clarifying language therefore is needed to stop agencies from undermining the will of Congress and ensure continued public access to government records.

Finally, legislation is needed to enhance and expand the role of the Office of Government Information Services (OGIS). OGIS’s role as chair of the FOIA Modernization Federal Advisory Committee reflects the central role OGIS can play in streamlining the FOIA process and reducing litigation under the FOIA. Legislation is needed to ensure OGIS continues to play that role. All requesters must be made aware of the option to seek dispute resolution services from OGIS. Legislation also should clarify OGIS’s authority to issue advisory opinions.

The letter is signed by groups including: the American Library Association, Citizens for Responsibility and Ethics in Washington, OpenTheGovernment.org and Transactional Records Access Clearinghouse. The National Security Archive, the parent organization of FreedomInfo.org is also a signer.

Political Uncertainty

Conservative Republican Sens. Ted Cruz (Texas) and Mike Lee (Utah) in September signaled their opposition to anything except emergency legislation in the post-election session.

However, according to media reports, Senate Republican Majority Leader Mitch McConnell does not concur. Still, under Senate rules, a few opponents can delay or block action when time is limited.

Proponents of the FOI bill, noting the recent addition of Sen. Charles Grassley (R-Iowa) as a sponsor, hope it’s noncontroversial enough to slip though. A similar House bill passed easily, and although the Senate bill goes further, particularly regarding Exemption 5, the House sponsor says he agrees with the Senate bill. (See previous FreedomInfo.org report.) The Senate Judiciary Committee has yet to act on the bill (S. 2520).

“We have to get to the lame duck before we decide what’s possible,” McConnell said, according to an article in Politico.

Another Republican Senator, Mike Johanns from Nebraska recently supported the bill in an op-ed article.

The Obama administration testified on the bill on March at a Senate Judiciary Committee hearing but did not endorse the legislation.

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