FOIA Reform Probably Isn't Going to Happen This Congress

Transparency advocacy groups were heartened during this Congress' final week when several senators dropped opposition and the chamber passed a long-sought Freedom of Information Act Improvement Act. But by Friday, hopes were dimming as House members fresh off a nail-biter vote on passage of the major government funding bill began leaving town.

Senate FOIA bill sponsor Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, released a statement saying he was deeply disappointed. “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 [John] Cornyn [R-Texas] 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 bill would write into law the “presumption of openness” requirements in President Obama’s January 2009 FOIA memorandum and would allow agencies to withhold information only if disclosure would result in "foreseeable harm." It would tighten oversight of FOIA compliance through the National Archives and Records Administration’s Office of Government Information Services, working in partnership with the Justice Department and reporting directly to Congress. And it would require each agency to set up a central online portal for the public to file FOIA requests.

Patrice McDermott, executive director of a coalition of dozens of nonprofits called OpenTheGovernment.org, was still holding out hope for last-minute action. “You’d think this would be priority for [House Speaker John] Boehner—he made openness a key issue for the House,” she told Government Executive.

Sean Moulton, director of open government policy at the Center for Effective Government, had written optimistically on the bill’s prospects as recently as Monday. But on Friday he said the failure of House schedulers to include it on the calendar made passage of the Senate version “unlikely.”

 A House version, H.R. 1211, sponsored by House Oversight and Government Reform Chairman Darrell Issa, R-Calif., passed that chamber last February. But though Issa was flexible on the Senate version, according to his staff, some senators -- among them retiring Sen. Jay Rockefeller, D-W.Va. -- were concerned that the bill might make it more difficult for agency attorneys to prosecute financial fraud, which accounted for the delay.

Leahy argued that agencies were held to the bill’s standards during the administrations of both Obama and President Clinton. “It was only during President George W. Bush's term of secrecy that this standard was rolled back,” Leahy said. “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.”

Late Friday, Issa put out a statement saying, “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. 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.”