On November 18 Senator Leahy (D-VT) and Senator Cornyn released a revised version of S. 2520, the FOIA Improvement Act. The Senate Judiciary Committee is poised to mark-up the bill on Thursday, November 20. More than 70 organizations joined in a letter authored by OTG and Public Citizen urging the Judiciary Committee to support the measure.
The revised version of S. 2520 makes several critical reforms to the Freedom of Information Act (FOIA) that will make the law a better tool for the public to use to learn more about what the federal government is doing, and why. Time is running out on the 113th Congress, but the changes made from the original version of the bill will help make sure that a strong FOIA reform bill is signed into law this year.
Here are some of the highlights of the manager's amendment:
Presumption of Openness. Like the original bill, the revised version of S. 2520 locks in the Obama Administration's stance that agencies should process all requests for records under the presumption that they should be released. Putting this language into law is crucial for making sure that agencies treat the FOIA as it was originally intended: a law that helps the public obtain agency records. In the recent past different Administrations have had widely different approaches to the public's right to know (for example, the Bush Administration encouraged agencies to use any legal means possible to withhold records from the public).
Foreseeable Harm Standard. The bill also includes a portion of the current Administration's policy that directs agencies to not withhold records unless they are required to withhold them under the law, or there is a foreseeable harm to the protected interest from release. This provision is targeted a reducing the use of what are known as "discretionary exemptions." Unlike the exemptions covering classified information, trade secrets, and some other types of information, agencies are not required to withhold records that are protected by discretionary exemption. One discretionary exemption that the Leahy-Cornyn bill should be particularly helpful for reining in is Exemption 5, which covers inter- and intra-agency records. As we've previously described, Exemption 5 has become a blackhole agencies can use to indefinitely withhold records.
25 Year Sunset on the Use of Exemption 5. The revised version of S. 2520 also directly addresses the overuse of Exemption 5 by putting a 25 year sunset on the use of the exemption. The sunset helps members of the public obtain historical records that will help them better understand how a policy was developed. A similar sunset in the Presidential Records Act allows the public to obtain records covered by the deliberative process privilege 12 years after the President has left office.
Provisions to Strengthen OGIS. The bill gives the FOIA ombuds office, the Office of Government Information Services (OGIS) the ability to bypass Office of Management and Budget (OMB) review of its recommendations to improve the law. OMB review in infamous for being a lengthy and opaque process. We know OMB can demand that an agency make changes before a report can be released, but there is no way for the public to know what changes have been made. Among other changes, the bill also clarifies OGIS' ability to issue advisory opinions and gives the office direct access to the statistics agencies compile on FOIA processing each year.
GAO Reports. The report requires the Government Accountability Office (GAO) to look at several long-standing problems with the FOIA, including creating a catalog of the hundreds of provisions requiring agencies to withhold categories of information scattered throughout the code and on how agencies are using exemption 5, and to look at how agencies are reducing their backlogs. The bill also requires GAO to audit compliance with the FOIA at at least three administrative agencies every two years.
Senator Leahy's office created an updated section-by-section analysis of the bill here.
We encourage Members of the Judiciary Committee to support this critical reform, and urge the Senate to take action on the bill as soon as possible.