Lawmakers Seek to Bolster Public Records Law

A bipartisan group of senators on Wednesday introduced a bill to strengthen the Freedom of Information Act, in response to a recent Supreme Court decision and efforts by the Environmental Protection Agency to curb public record requirements.

Last month, the Supreme Court ruled in Food Marketing Institute v. Argus Leader Media that when a business provides private commercial or financial information to the federal government “under an assurance of privacy,” that information is deemed confidential and subject to an exception from disclosure under the Freedom of Information Act.

The Environmental Protection Agency also recently announced changes to its FOIA rules, granting political appointees the ability respond to FOIA requests, stipulating that all requests must be made to agency headquarters, and allowing officials to withhold portions of a document on the basis of responsiveness. Sens. Chuck Grassley, R-Iowa; Pat Leahy, D-Vt.; John Cornyn, R-Texas; and Dianne Feinstein, D-Calif., penned a letter to EPA Administrator Andrew Wheeler on Monday objecting to those changes, noting that the new responsiveness standard conflicts with existing court precedent.

Those same four senators sponsored the Open and Responsive Government Act (S. 2220), which seeks to undo many of the changes. The bill clarifies language in the Freedom of Information Act to ensure that “confidential” business information only applies to data that would harm a company’s competitiveness, effectively reversing the Supreme Court decision.

It also prevents agencies from withholding portions of a document due to a lack of responsiveness, codifying the precedent established in a 2016 U.S. Circuit Court decision and invalidating a portion of EPA’s recent regulation change.

“The people’s business ought to be available to the people,” Grassley said in a statement. “It’s only through public oversight and transparency that we ensure government programs are operating as intended, without any waste, fraud or abuse . . . This balanced and bipartisan bill responds to recent court rulings and regulatory actions, restoring pro-transparency principles and making crystal clear where Congress stands on the public’s right to know.”

Leahy said the measure would be an important bulwark against recent efforts across the federal government to reduce transparency.

“The bill would limit the extent to which the government can use a recent Supreme Court opinion to justify abuses of a particular FOIA exemption to withhold information,” Leahy said. “And it would codify another court decision—one that the Trump administration increasingly ignores—prohibiting the government from withholding information on the tenuous rationale that it is supposedly not responsive to the FOIA request.”

The EPA rule change has drawn fire from environmental groups as well. On Wednesday, the Ecological Rights Foundation and the Our Children’s Earth Foundation filed a lawsuit against EPA in the U.S. District Court for the Northern Region of California, challenging the legality of the rule changes.

“EPA’s regulations violate the letter and the spirit of FOIA by codifying political interference in the FOIA process, by ensuring that responses are made even further past the statutory limit, and by attempting to allow EPA to proceed under a veil of secrecy,” said Annie Beaman, director of advocacy and outreach for Our Children’s Earth Foundation. “If EPA wants to stop its dirty laundry from being aired to the public, the solution is to clean up its act, not to struggle against the black letter requirements of FOIA.”

(Image via Flickr user Gage Skidmore)