FOIA Reform Appears Close, But Not a Done Deal

Bipartisan bills aimed at strengthening the openness requirements of the Freedom of Information Act are heading into House-Senate negotiations, but not without exposing some long-standing trepidation inside the Obama administration.

Though White House spokesman Josh Earnest has said the president would sign the Senate version of the bill passed last month, the measure the House passed in January has some stricter requirements that need to be negotiated. Nothing is guaranteed: In the past Congress, FOIA reform bills also cleared both chambers, but then-Speaker John Boehner, R-Ohio, declined a floor vote.

In addition, a coalition of 47 transparency advocacy nonprofits last month wrote a letter to the White House expressing displeasure with some Justice Department objections to the earlier bills, which only recently came to light under—of all things—a FOIA request.

The goal of the legislation is to require agencies to operate under a “presumption of openness” when considering the release of government information under FOIA and curb “overuse of exemptions to withhold information from the public,” according to Sen. Patrick Leahy, D-Vt., a longtime advocate. The bills would enhance the ability of the Office of Government Information Services—run out of the National Archives and Records Administration—to help mediate FOIA disputes. 

Both pending bills would try to reduce bureaucracy by requiring the Office of Management and Budget to create a single portal through which individuals can submit a FOIA request to any agency. And they would require agencies to disclose documents proactively that are likely to be of public interest in order to increase access to government documents outside the often onerous FOIA request process.

The differences between the chambers’ bills, according to congressional sources, center around the Senate’s greater willingness to let agencies cite exemptions in withholding some types of documents. For example, in addressing the law’s exemption five, which allows denial of release of documents related to the deliberative process and attorney client privilege, the House would prohibit agencies from withholding any records if they are more than 25 years old; the Senate would prohibit agencies from withholding only those documents that fall under the deliberative process privilege if they are more than 25 years old.

Also, the House measure contains provisions not in the Senate’s, such prohibiting agencies from withholding the names of a federal employees engaged in official duties (their private contact information or financial information would remain protected); requiring agencies to provide a list of documents withheld and identify the exemption used; and requiring agencies to provide the name of the person who made the decision to withhold the information.

A spokeswoman for Leahy, Jessica Brady, told Government Executive that for Leahy and Sen. John Cornyn, R-Texas, “The push is for the House to pass the Senate legislation.”

Senate Judiciary Committee spokeswoman Taylor Foy said both chambers are still reviewing the bills that have passed and that “the strong showing of bipartisanship in both chambers to improve FOIA is a good indication of the desire on both sides of the Hill to get a bill to the president’s desk in the near term.”

But if the Obama team thought it would belatedly sign on with the swelling support for reform, it may be because of pressure after the release in March of 100 pages resulting from a two-year-old FOIA request by the Freedom of the Press Foundation and, later, the news website Vice.

Those requests produced memos from Justice, the Securities and Exchange Commission and the Federal Trade Commission showing opposition to FOIA requirements.

According to a six-page “talking points” memo from White House and Justice officials in 2014, the then-pending FOIA reform bills would increase the FOIA request backlog, raise costs, and cause new issues with processing requests. "The administration views [the House bill] as an attempt to impose on the Executive Branch multiple administrative requirements concerning its internal management of FOIA administration, which are not appropriate for legislative intervention and would substantially increase costs and cause delays in FOIA processing," the memo said.

“The administration believes that the changes… are not necessary and, in many respects, will undermine the successes achieved to date by diverting scarce processing resources," the memo continued. The officials also were skeptical about creation of a single Web portal for FOIA requests and pressed for the Justice Department, not the OGIS office at Archives, to be the arbiter of disputes.

The administration’s reasoning, according to the talking points, was that “we are committed to improving FOIA administration across the government, and we believe that the President’s [2009] FOIA Memorandum and the Attorney General’s FOIA Guidelines provide the best framework for those improvements. In the five years since their issuance, agencies have achieved many real successes, processing more requests, improving response time, and making more information available proactively.”

When those documents were released in March just as the Senate was clearing the bill, the 47 transparency groups sent the White House a letter that read: “We, the undersigned organizations and individuals, write to express our deep concern regarding efforts by the Department of Justice to undermine legislation in the last Congress that would have strengthened the Freedom of Information Act and likely are continuing to undermine FOIA amendments proposed by this Congress. We urge you to repudiate the positions taken by the Justice Department and instead publicly and unequivocally endorse the bipartisan FOIA Improvement Act, which was unanimously passed by the Senate.”

They added that the Justice Department’s blunt talking points flew in the face of President Obama’s January 2009 memo committing to open government.  “Without these legislative changes, implementation of the FOIA will remain a matter of policy not a statutory command, too often driven by partisan political concerns.”