Hail Mary Option for FOI Bill in Senate Ruled Out

12 December 2014

A last-ditch way to pass freedom of information act reforms in the US Congress this year – bringing up the House bill on the Senate floor – has been ruled out.

Although the idea has been considered, it was rejected because of the likelihood that some senators would object, FreedomInfo.org has been told. Without unanimous consent no action is feasible in the final days of the session.

The Senate bill (S. 2520), passed unanimously Dec. 8, and the House bill (HR 1211), passed unanimously Feb. 25, have major similarities, including the codification of the “presumption of harm” standard. Members of the coalition of 70 public interest groups for FOIA reforms much prefer the Senate bill, however, and did not push for passing the House bill in the Senate.

More significant strategically is the determination by supporters of the bill in the Senate that several senators would raise objections to the House bill, making approval impossible. They did no pinpoint who would raise such objections.

In recent days, several senators put holds on the bill, including Sen. Tim Johnson (D-ND) and Jay Rockefeller (D-W.Va.), but later removed them.

A tweak was made to bill to satisfy Rockefeller’s concern. Johnson and bill sponsor Patrick Leahy (D-Vt.) engaged in a colloquy in the Senate floor addressing Johnson’s concerns, and report language was added. It is possible that they would not see the same protections for their concerns in the House bill. And other concerns could arise.

A Senate Judiciary Committee spokesperson wrote FreedomInfo.org:

We heard enough concerns about the legislation after it passed the House that Leahy and Cornyn worked together on a separate bill that would have the support of the ranking member, and would have a path to unanimous consent in the Senate. The House bill unfortunately did not meet those factors.

The ranking member is Sen. Charles Grassley (R-Iowa). Sen. John Cornyn (R-Texas) was a co-sponsor of the bill with Leahy.

The failure to pass the Senate bill on the House side is reliability attributed to concerns raised by banking lobbyists, and possibly by banking regulators, although no specific names have been cited. Supporters of the bill did not have enough time to resolve the, leaving the Republic leadership unwilling to bring the bill to the floor.

House Speaker Republican House Speaker John Boehner Dec. 11 said, “I have no knowledge of what the plan is for that bill.” (See FreedomInfo.org report.)

Rep. Darrell Issa (R-Calif.), a lead House supporter, on Dec. 12 issued a statement called the differences between the two bills “minimal” and urged the Senate to pass the House bill.

Issa’s statement said:

As someone who supported both the House and Senate versions of FOIA reform, I’m disappointed that the House ran out of time to address concerns in the Senate bill and the Senate declined to approve a House passed version, which had only minimal differences,” said Chairman Issa.  “The reality is that, even today, the Senate could still send a bipartisan FOIA bill to the President if they were willing to accept some minimal differences.

Republican supporters of the bill said they were frustrated that the Senate bill was not approved earlier in the session.

Leahy Dec. 12 issued a statement about the House failure to act:

I am deeply disappointed that last night the House failed to pass the FOIA Improvement Act. This bipartisan bill was reported unanimously by the Senate Judiciary Committee last month, and it was the product of months of hard work by Senator Cornyn and me. Our bill is supported by more than 70 public interest groups that advocate for government transparency and it passed out of the Senate unanimously. I would think that members of the House Republican leadership, who have spent so much time on oversight of the Obama administration, would support the goal of making government more accountable and transparent. But instead of supporting this bill, they have chosen secrecy over sunlight.

The FOIA Improvement Act would codify what the President laid out in his historic executive order in 2009 by requiring Federal agencies to adopt a ‘Presumption of Openness’ when considering the release of government information under FOIA. This bill would require agencies to find a foreseeable harm if they want to withhold information from the public. Prioritizing the people’s interest in what their government is doing, our bill will reduce the overuse of exemptions to withhold information. Federal agencies have been required to apply this standard since 2009. They also used this same standard during President Clinton’s terms in office. It was only during President George W. Bush’s term of secrecy that this standard was rolled back. It appears the House leadership wants to return to that era. It should not matter who is in the White House, information about what their government is doing belongs to the people.

In a political climate as divided as this, I had hoped that we could come together in favor of something as fundamental to our democracy as the public’s right to know. That government transparency and openness would not just be the standard applied to the Obama Administration but what is applied to every future administration. The FOIA Improvement Act would have done just that.


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