Senate FOI Bill Stripped Of Deliberative Process Reform

18 November 2014

Sponsors of a Senate Freedom of Information Act reform bill have dropped a provision dear to the heart of supporters.

Gone is a so-called “public interest balancing test” to evaluate agency claims that disclosures would interfere with the deliberative process, according to a revised text to be considered Nov. 20 by the Senate Judiciary Committee.

Losing the provision is a disappointment to reform advocates, but they are likely to accept this and other alterations in order to get other reforms  approved. OpenTheGovernment, a coalition of reform groups, summarized what it considers the positives in the bill.

Mitigating the loss of the public interest clause is a central provision in the bill, one that mandates that agencies should show what “harm” would foreseeably result from the disclosure of information, even if it is arguably covered by an exemption. This interpretation was propounded by the Obama administration, but was not followed by agencies, critics have said.

Also possibly assuaging is the inclusion of a mandate for a study on the use of the deliberative process exemption, which FOIA advocates have said is being overused by agencies.

Still in the bill is a provision that would make the deliberative process exemption inapplicable to records older that 25 years.

The sources of the pushback on the public interest clause was not immediately ascertainable, but the bill’s bipartisan sponsors have been under pressure to get the bill passed through committee unanimously in order to get it approved in the Senate during the waning days of this congressional session. The changes are said to be acceptable to the sponsors in the House, where a similar bill has already been approved.

Several other changes have been made, too. They are included in a manager’s amendment that will be offered as substitute bill when the Judiciary Committee meets.

A prohibition on charging fees when an agency delays the handling of a request has been amended so as not to apply to very large requests, more than 50,000 responsive records.

The Government Accountability Office would be required to conduct audits of the FOIA activities of three or more agencies every two years.

Another report would be ordered, on backlog reduction methods.

Also newly added is a requirement that the Office of Management and Budget to “ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records under subsection (a) to any agency from a single website.”

Unchanged are provisions that would enhance and expand the role of the Office of Government Information Services (OGIS).

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