Lame Duck Looking Not So Lame for OpenGov

The lame duck session of the 113th Congress has already acted on one open government priority– sending a bill to the President for signature that will help speed up the release of historical White House Records — and leaders in the Senate have taken steps to push forward legislation to reform the National Surveillance Agency's (NSA) surveillance programs and to strengthen the Freedom of Information Act (FOIA). 

On November 13 the House approved final passage of HR 1233, the Presidential and Federal Records Act. The bill, which OTG and several of our partners and allies endorsed earlier this year, limits the amount of time the current president or an affected former president has to assert a claim of privilege to stop the proposed release of records. In the absence of legislation like HR 1233, how the government handles claims of privilege by former presidents has been left entirely to the discretion of the current president (which has been set through the issuance of an Executive Order). These procedures have varied widely, and have had an impact on the public's ability to obtain Presidential records. The final version of HR 1233 also includes a provision that requires federal employees to keep a copy of all emails from personal accounts that deal with official business.

In the Senate, Majority Leader Reid made way for the Senate to take up debate on S. 2685, Senator Leahy's version of the USA Freedom Act. and a wide range of partners have all joined to call for passage of Senator Leahy's version of the bill — particularly in light of the inclusion of stronger provisions requiring the NSA to be more open about its surveillance programs. Passing S. 2685 would be a strong signal that Congress is serious about reining in the intelligence community, and help set the stage for further necessary reforms.

Senator Leahy also made an announcement about his intention to mark-up S. 2520, the FOIA Improvement Act, in the Judiciary Committee. The mark-up was originally scheduled for November 13, but conflicting scheduling would have prevented several Members from attending the hearing so it will be held the following week. According to a statement released by Senator Leahy:

This FOIA bill should be debated in full public view, and so we will hold over our legislation this week so all members and the public can participate in this important debate. I expect the Judiciary Committee will approve our bipartisan legislation next week when the Committee meets at its regularly-scheduled time.

S. 2520 makes several critical changes to the law that will make it a better tool for the public to obtain agency records. Among other things, the bill will lock in President Obama's directive that an agency release records unless its release is prohibited by law or there is a foreseeable harm, strengthen the still fairly new and small federal FOIA ombuds office, the Office of Government Information Services (OGIS), and put some limits around agencies' ability to withhold records under the exemption covering inter- and intra-agency records (an exemption refered to by many in the FOIA community as the "We Don't Want To Give It To You" Exemption). You can find a fact sheet about the bill here.

Both USA Freedom and the FOIA reform bill have a ways to go before they are ready to be signed into law — and time is running out on the 113th Congress. However, the obvious interest in passing these bipartisan, pro-open government bills is a promising sign that progress can still be made this year.

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