Senate Panel Approves Reforms for US FOI Act

20 November 2014

The US Senate Judiciary Committee Nov. 20 unanimously approved reform amendments to the Freedom of Information Act.

The bipartisan support for a somewhat modified version of the bill (S. 2520) is expected to improve the chances of passage in the Senate this year.

Committee Chairman Patrick Leahy (D-Vt.) said in an opening statement, “We have worked with Democrats and Republicans to address some concerns with the legislation, and the managers’ amendment we will offer today is a reflection of those conversations.”

See bill text.

Praising the action, Patrice McDermott, Executive Director of, said in a statement, “The bill takes important steps to make the FOIA a stronger and more effective tool for the public.” Seventy-one groups sent a letter Nov. 19 urging passage of the bill, similar to one already passed in the House. The groups lauded the bill for “positive changes.”

A major change would codify the Obama administration’s presumption of openness for agencies when determining whether to release information under a FOIA request. The standard would require agencies to process requests under the assumption that the records must be released unless there is a foreseeable harm or specific legal or statutory prohibitions on its release.

“This language will spur vital changes to agencies’ use of FOIA’s exemptions such as Exemption 5 (also called the b(5) exemption) which has been referred to as the “withhold it because you want to” exemption by some requestors because of the rampant overuse of this particular provision,” the group letter said. “The undersigned groups are extremely concerned with this exemption as they have seen multiple FOIA requests denied under this exemption when an agency unwarrantedly cites the “deliberative process privilege.”

Provision Dropped

The committee-approved bill does not include a provision in the original bill, authored by Leahy and Republican Texas senator John Cornyn, designed to further impede overuse of the deliberative process exemption. The provision was dropped because of objections from other senators during negotiations in advance of the meeting.

Gone is a so-called “public interest balancing test” to evaluate agency claims that disclosures would interfere with the deliberative process.

Supporters said, however, that the harm test codification will help limit b(5) abuse.  They also note a newly added provision would make the deliberative process exemption inapplicable to records older that 25 years. In addition a study by the Government Accountability Office (GAO) on the use of the deliberative process exemption is ordered by the bill.

Several other changes have been made to the original bill.

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

In addition, the GAO would be required to conduct audits of the FOIA activities of three or more agencies every two years.

Another GAO report would be ordered, on backlog reduction methods.

Also newly added is a requirement that the Office of Management and Budget “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.” The administration is already working on a consolidated portal.

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

A Chief FOIA Officer Council would be created by the bill “to develop recommendations for increasing agency FOIA compliance and efficiency, disseminate information about agency best practices, and coordinate initiatives to increase transparency and open government.”

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