Sen. Rockefeller Defends Objections to Senate FOI Bill

8 December 2014

A few more specifics have emerged about the substance of  a last-minute debate over a Senate freedom of information bill.

Both sides say discussions are ongoing while time is running out.

Holding up action on the bill (S 2520) is Sen. Jay Rockefeller (D-W-Va), whose office Dec. 8 provided FreedomInfo.org with a more detailed defense of his objections in somewhat stronger language than used last week.

A Rockefeller aide said a provision in the bill requiring agencies to show that “foreseeable harm” would result from the release of information would create several problems. Corporate defendants “could inundate” agencies with requests and would generate troublesome litigation challenging FOIA releases. The “needless litigation” would drain agency resources and chill internal agency deliberations, according to the aide.

In a rebuttal of Rockefeller’s position, Amy Bennett of Open the Government called Rockefeller’s fears “completely unfounded” and said that “nothing in this legislation” would provide defendants ways to obstruct or delay investigations. Many of the organizations pushing the bill are consumer groups and say they would never back a bill favoring corporate defendants.

Perverse Outcome Predicted

In the background information provided to FreedomInfo.org, Rockefeller’s said predicted a “perverse outcome.” In a shorter statement on Dec. 5, Rockefeller said the bill would have “unintended consequences.” (See previous FreedomInfo.org report.)

Rockefeller raised his concerns Dec. 5, according to a statement by the bill’s chief sponsor, Judiciary Committee chairman Patrick Leahy (D-Vt.). The committee passed he bill unanimously in late November.  The bill at that point appeared close to passage, appearing to have the support of all the other senators. Rockefeller’s action came as a surprise to the bill’s supporters. A similar House bill passed unanimously earlier this year.

Despite the widespread bipartisan support for the bill, Rockefeller, who is retiring from the Senate, has considerable leverage in the final few days of the congressional session.

Rockefeller’s Arguments

“Rockefeller’s concerns with provisions in S. 2520 are based on conversations his staff has had with government experts at various agencies charged with consumer protection,” according to the new explanation of his views. Two agencies have been mentioned – the Federal Trade Commission and the Securities and Exchange Commission – but Rockefeller’s office would not confirm this, nor would the agencies.

The aide said further, “Chairman Rockefeller is concerned that some provisions in the law would also greatly aid corporate defendants and undermine law enforcement efforts.”

Further, according to the Rockefeller aide:

Under current law, government agencies’ internal deliberations with regard to their law enforcement and regulatory activities – communications that fall within the categories of “attorney-client,” “work product” and “deliberative process” privileges – are categorically exempt from disclosure under FOIA requests. These critical exemptions embody hundreds of years of American legal tradition, which generally exempts work product documents and attorney-client communications from the discovery process of civil litigation. Further, they allow government agencies’ law enforcers to freely exchange ideas and legal strategies as part of their internal decision making processes. Thus, corporate defendants could potentially do through foia what they are unable to do through the discovery process. This would be a perverse outcome.?Rockefeller believes it is vital that law enforcement agencies have this freedom to internally communicate in order to protect the American public.

The Senator is concerned about provisions in S. 2520 that would codify a “foreseeable harm” standard in statute that may favor corporate wrongdoers. That is, the bill would statutorily require government law enforcement agencies to withhold documents from a FOIA request only if they first establish that “the agency reasonably foresees that disclosure would harm an interest protected by” the exemption invoked. Consequently, the bill could expose law enforcement agencies to needless litigation and drain their already limited resources in defending FOIA decisions that have long been invoked for legitimate law enforcement purposes (It is worth noting that, as a discretionary matter, agencies still often turn over such information in FOIA requests as long as it does not harm their law enforcement efforts).

For example, in order to gain an advantage in litigation, corporate defendants could inundate law enforcement agencies with FOIA requests and subsequently sue those agencies for not adequately showing foreseeable harm when they rightfully invoke the attorney-client privilege, work product, or deliberative process exemptions.

Consequently, the Chairman believes this new foreseeable harm standard would likely have a chilling effect on internal communications and deliberations and could limit internal debating on law enforcement strategy, deter agency employees from providing candid advice, and lower the overall quality of the government decision-making process – all which are absolutely vital to effective law enforcement.??We are having ongoing discussions with the Judiciary Committee in an effort to find a path forward and pass the bill, as Rockefeller noted in his remarks on Friday.

Open the Government Backs Bill

Bennett from Open the Government, a coalition of groups, has defended the bill,saying:

Senator Rockefeller is expressing a concern raised by the FTC that under the bill, information protected by attorney client privilege and deliberative process could lose its protection.  This fear is completely unfounded. Courts have long recognized the importance of protecting agency information created during a deliberative process, including that protected by attorney client privilege and attorney work product. This bill does nothing to alter that long standing protection before the 25 year mark.

This bill would require agencies, when using a discretionary exemption, to find a foreseeable harm if the information is released. Agencies have been required to use this standard since 2009 when Attorney General Holder issued a memo requiring it. Agencies also used this same standard during President Clinton’s term.  It was only during President George W. Bush’s term of secrecy that this standard was rolled back.

Sen. Rockefeller also expressed concern that the changes “would potentially give defendants new ways to obstruct and delay investigations into their conduct.”  There is nothing in this legislation that provides defendants ways to obstruct or delay investigations.

Patrice McDermott, Executive Director of OpenTheGovernment.org, on Dec. 6 called Rockefeller’s concerns nebulous.”

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