FixFOIAby50 gains momentum

Sunshine in Government Initiative

The FixFOIAby50 logo.

The federal Freedom of Information Act will turn 50 in July, and some members of Congress are pushing to mark the date with a birthday present for the public by passing legislation to streamline access to public records.

Half a century after its enactment, FOIA is showing its age. It has been almost 10 years since the last changes to the law, and only a handful of amendments have been enacted since its original passage in 1966.

But each round of reform and improvements is a formidable task for advocates of government transparency. Advancing the public’s right to know has never been easy. President Lyndon B. Johnson was deeply skeptical about the original Freedom of Information Act in 1966, even refusing to hold a formal ceremony to mark the signing.

It has only been through the tireless efforts of advocates—both outside and inside government—that access to government records has prevailed and has hope for improvement in the future.

Most recently, in January, the U.S. House of Representatives unanimously passed H.R. 653, the “FOIA Oversight and Implementation Act of 2016,” which would significantly alter and improve how records requests are processed and adjudicated under FOIA.

H.R. 653 is the latest in a long-running effort to fix the problems that plague records requestors. A 2015 Associated Press analysis, for example, found the backlog of unanswered requests grew 55 percent by the end of FY 2014 over the year before, and federal agencies cited a record number of exemptions to withhold information.

That such negative trends have persisted under President Obama’s administration, which promised to be the most transparent in history, has confirmed for many that anything short of legislative reform is not enough.

Previously, in late 2014, a bipartisan FOIA reform bill failed to be put to a House vote, despite unanimous passage in the U.S. Senate and the earlier passage of an even more expansive bill in the House. Last-minute holds in the Senate and further delays in the House, reportedly following objections from the banking industry, led to the measure’s ultimate demise.

This time around, lawmakers pressed forward with extensive hearings before the House Oversight and Government Reform Committee last summer. Headed by Chairman Jason Chaffetz (R-Utah), the hearings examined the public’s frustration with getting information through FOIA.

Official Photo

U.S. Rep. Jason Chaffetz (R-Utah) is chairman of the House Oversight and Government Reform Committee, which held FOIA hearings last summer.

New York Times vice president and assistant general counsel David McGraw was one of many media representatives who testified about the “culture of unresponsiveness,” as he called it, that has taken over at many federal government agencies.

In January 2016, Committee Chairman Chaffetz published a detailed report titled “FOIA Is Broken,” based on testimony and comments at the hearing, as well as additional comments from the public. It concluded that “[u]nnecessary complications, misapplication of the law, and extensive delays are common occurrences. Agencies fail to articulate reasons for delays or explain how to navigate the process. Requesters wait months, not weeks, before receiving any response.”

Far from implementing instructions from the President and Attorney General to adopt a presumption of openness, “[f]ar too often, agencies have adopted a unlawful presumption in favor of secrecy when responding to Freedom of Information Act requests,” the report says.

In response to these problems, H.R. 653, as passed, lays out a number of reforms.

First, it codifies the presumption of openness laid out by President Obama and then-Attorney General Eric Holder in 2009. Under the new standard “[a]n agency may not withhold information…unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.’’

Legislating the presumption of openness is consistent with case law, which makes clear FOIA should be broadly construed in favor of public access, and it ensures that policy will endure. In 2001, then-Attorney General John Ashcroft famously issued a memo essentially encouraging agencies to withhold information wherever possible under FOIA. That memo was rescinded in 2009, but codification of the presumption of openness will make it harder for future administrations to revert to a policy of secrecy.

Substantive changes have also been made to specific exemptions, including Exemption 5 — commonly called the “withhold it because you want to” exemption. Chief among these reforms is a 25-year sunset provision, which would open up important historical documents previously withheld from the public.

Another change to Exemption 5 is that “opinions that are controlling interpretations of law” must be disclosed, along with “final reports or memoranda” created by other entities but used to make “a final policy decision.” These reforms would help ensure the public has access to records that reflect the government’s policies and reasons they were adopted, as well as legal guidance, such as Office of Legal Counsel opinions.

The issue of delay, one of the most vexing concerns about FOIA inefficiency, is addressed in the bill by limiting the amount of time agencies can consult with other “entities” (government or otherwise) on a request. Under the bill, when an agency that receives a FOIA request “consults” with another entity, the original agency must let the requester know what it is doing. The entity being consulted has 15 days to review up to 3,000 pages of records before its interest is deemed waived. Another 15 days are given to the consulted entity to review each additional 3,000 pages of responsive records.

The Office of Government Information Services (OGIS) is also strengthened by H.R. 653. The bill mandates that reports to Congress on how FOIA is functioning be submitted directly to Congress without being vetted by the Archivist of the U.S. or Office of Management and Budget. H.R. 653 also requires agencies responding to FOIA requests to provide information about the services provided by OGIS, and ensures that they update their regulations to allow for engagement with OGIS.

Additional FOIA reform in H.R. 653 includes:

• Mandating all agencies accept FOIA requests via email.
• Prohibiting the use of Exemption 6 (personal privacy) to withhold the name of a federal employee engaged in his or her official duties.
• Creating a universal online request portal.
• Requiring the release of all records that have been requested three or more times.
• Mandating an award of costs and attorney’s fees for successful litigants.
• Requiring agencies to proactively post more records in their electronic reading rooms.
• Providing detailed information regarding the assessment or estimation of fees.
• Creating a “Chief FOIA Officers Council” that will develop recommendations and share information to increase efficiency.
• Providing for periodic Inspector General reviews of agency FOIA compliance.

The passage of the House bill is widely seen as a positive development by the news media. The Sunshine in Government Initiative, of which the Reporters Committee is a member, stated that it showed “the bipartisan spirit to make government transparent and accountable to the public is alive and well.”

But despite the many improvements made by H.R. 653, a last-minute addition that carves out the intelligence community from many of its reforms remains controversial. More than 40 organizations signed a letter objecting to the change that was apparently added “at the behest of members of the House Permanent Select Committee on Intelligence.”

The letter goes on to state that “efforts to exempt the Intelligence Community from certain provisions of the FOIA amendments in this bill are not acceptable,” and allowing “the Intelligence Community to differentiate itself from other agencies with its responsibilities to FOIA is a bad precedent.”

Part of the concern over the intelligence carve-out is that the language is unclear. The bill includes a section titled “rules of construction” that states, among other things, that nothing in the amendments made to FOIA’s exemptions “shall be construed to require the disclosure information that … would adversely affect intelligence sources and methods that are protected by an exemption under such section.”

The scope of the phrase, “adversely affect intelligence sources and methods”, is uncertain. And a pair of letters exchanged between Rep. Devin Nunes (R-Calif.) and Chaffetz regarding the exemption does little to shed light on the intent of the last-minute addition.

In the Senate, the bipartisan reform effort is being led by Sen. John Cornyn (R-Texas) and Sen. Patrick Leahy (D-Vt.) in the Judiciary Committee. They are not taking up H.R. 653 as passed by the House, but rather starting from S. 337, which was passed by the Judiciary Committee last year.

That bill, while less sweeping than H.R. 653, still includes many of its most important reforms, including codifying the presumption of openness, placing a 25-year sunset on the deliberative process aspect of Exemption 5, and strengthening OGIS.

While previous FOIA reform efforts have been approved by the Judiciary Committee a number of times, there are outstanding concerns among some senators that might hamper its passage by unanimous consent in the full Senate. A handful of senators currently have holds on the bill, a situation that echoes 2014, when a number of holds jeopardized the Senate’s action on FOIA reform.

When S. 337 was previously passed by the Senate Judiciary Committee, concerns were specifically expressed about the 25-year sunset provision on Exemption 5. As explained in the Committee Report, for some the sunset “could chill government lawyers from offering candid advice and invite criminal defendants and their attorneys to re-open and re-litigate long-resolved cases.”

It is also possible that there are other concerns regarding Exemption 8, which covers reports from financial institutions, and regulatory oversight. But as noted in testimony before the House last year, there is little reason to think the proposed reforms would have any damaging impact.