The current lame-duck congressional session may end up producing an overdue and substantial reform of the Freedom of Information Act (FOIA), if recent actions in the U.S. Senate are any indication. On Nov. 20, the U.S. Senate Committee on the Judiciary approved an amended version of the FOIA Improvement Act of 2014 (Senate Bill 2520), which is now poised to go before the full Senate in December. A similar bill, the FOIA Oversight and Implementation Act of 2014 (House Bill 1211), was passed in the U.S. House of Representatives with wide bipartisan support earlier in 2014.
FOIA requires agencies of the federal government—such as the Department of Justice, the FBI, the Department of Homeland Security, and the Department of Commerce, among others—to make broad categories of information available to the public, as well as to provide a mechanism for members of the public to request additional information. Found at Title 5, Section 552 of the U.S. Code, the act requires agencies to provide records (not otherwise published) to members of the public on request. An agency can require the requester to “reasonably describe” the requested records and can charge fees that are “limited to reasonable standard charges” for search, review, and duplication, etc.
However, the act also provides for several exemptions for which an agency can deny a FOIA request and withhold records from publication. These exemptions, found specifically at Section 552(b)(1) through (b)(9), include national security and classified information, trade secrets and financial information, records that invade personal privacy, records compiled for law enforcement purposes—if the record could put a fair trial at risk, invade privacy, or expose confidential sources or investigative techniques—and inter- and intra-agency memos and letters not “available by law.”
Addressing FOIA’s Criticisms
FOIA’s critics have alleged throughout its history (FOIA dates to the 1960s but came into force in the aftermath of the Watergate scandal) that agencies frequently use these exemptions to hide information, particularly information that might be embarrassing or damaging to the agency or the current presidential administration. Agencies have also reportedly used excessive fees, delaying tactics, and other techniques to discourage FOIA requests.
Early in its first term, the Obama administration published its Open Government Directive, which encourages a “presumption of openness” and transparency with regard to information held by federal agencies. The administration’s success in getting agencies to comply with the directive, however, has been mixed. A March 2014 report by the nonprofit Center for Effective Government gave 11 out of 15 federal agencies (those that receive the highest number of FOIA requests) a grade of D or F in FOIA performance.
The Senate’s FOIA Improvement Act of 2014 (and the House’s similar bill) seeks to address many of these criticisms through several specific reforms designed to move the administration’s “presumption of openness” from mere encouragement to federal law. These reforms include changing the statutory language to create a presumption that information is to be disclosed and could be withheld “only if” disclosure would be subject to an exemption. In addition, agencies would be required to consider “partial disclosure” when possible and to segregate and release nonexempt information. Critically, the bill provides that agencies may not take advantage of technicalities to claim exemptions and cannot withhold information because it might be “embarrassing to the agency or because of speculative or abstract concerns.”
The bill also would require frequently requested records to be posted electronically. Any records released under any FOIA request that “are likely to become the subject of subsequent requests” or have already been requested three or more times are to be made available for “public inspection in an electronic format”—most likely on the agency’s website.
An agency will also be encouraged to be timelier because the Senate bill provides that it cannot charge any fees if it “fails to comply” with any time limit. If circumstances require more time, the agency must notify the requester within the time limit but still is restricted to only 10 additional days in most cases.
One of the most criticized exemptions is for “inter-agency or intra-agency memorandums or letters that would not be available by law. …” This is sometimes referred to as the “deliberative process” exemption, which is intended to allow agency employees to communicate frankly among themselves in the administration of their responsibilities. Critics, however, have referred to this as the “withhold it because you want to” exemption. The original version of the Senate bill would have considered the “public interest in disclosure” before citing the exemption. However, the final version changed this to keep the exemption as is, but instituted a 25-year time limit. The compromise would allow the information to be disclosed after the need for frank communication has passed.
Adding Extra Oversight
Finally, the bill proposes several additional levels of oversight, including the requirement that each agency designates a “Chief FOIA Officer” with agencywide authority to ensure and monitor compliance. These officers would also be part of a new inter-agency counsel that would periodically meet to consider recommendations for improving compliance. In addition, the U.S. Government Accountability Office would report on compliance and backlog reduction as well as audit agencies for their compliance, and the Office of Management and Budget (part of the Executive Office of the President) would build a central web portal for FOIA requests.
Both the Senate and the House bills have strong bipartisan sponsorship and support and follow the Obama administration’s previous open government initiatives. The bills also have strong support from open government organizations, including the Sunlight Foundation, the ACLU (American Civil Liberties Union), and OpenTheGovernment.org.
The FOIA Improvement Act of 2014 has been placed on the Senate calendar for a floor vote. If it’s passed, it would need to also be passed by the House before going to the president for final approval. Although the House has already approved its own version of FOIA reform, the most probable scenario is for the House to vote on the Senate bill. OpenTheGovernment.org reports that in drafting the Senate bill, the Senate staffers worked to make sure it “could [be] embraced by both chambers.” Still, both chambers must act quickly to pass this legislation before the lame duck waddles out the door and closes the book on the 113th Congress on Jan. 3, 2015.
Special Update (Dec. 10): The FOIA bill was passed by the Senate with unanimous consent on Dec. 8. On Dec. 9, the bill went to the House where it is being held at the desk for floor consideration, meaning that the bill has arrived at the House and is intended to go to the full chamber rather than to a committee. This often happens when a bill passes in one chamber and a similar bill is being worked on, or has passed, in the other chamber—which is the case here. Given that, I would speculate that the House will vote on the bill at the next opportunity. The main cause for complication is if it gets lost among the funding/immigration/Central Intelligence Agency debates currently underway and never gets a vote. —G.H.P.