No luck on FOIA this Congress

The Freedom of Information Act (FOIA) (S. 2520) bill has been on a roller coaster the last few weeks! We were hopeful. Then thought it wasn’t possible. Then the law, which would give private citizens greater access to government information, passed the Senate and hope was revived. But no, sadly attempted FOIA reform is now reliably reported over and done for this Congress.

Photo by Rich Hill via Flickr

Photo by Rich Hill via Flickr

In the House of Representatives, with its 435 Members, the rules of the chamber are deliberately designed so that individual Representatives generally have no say in what bills come up for votes, when they’ll be considered, or what amendments might be in order. In sharp contrast, the Rules of the Senate empower every one of the 100 Senators to profoundly affect what’s considered, when and on what terms. What’s more, the Senate has long honored the unofficial practice of allowing any Senator to place a “hold” on a bill—for any reason or no reason—effectively preventing it from even being considered by the body.

On Monday, in the last few hours of the 113th Congress (which is likely to permanently adjourn today), Sen. Jay Rockefeller (D-WV) placed just such a hold on S. 2520, critical FOIA reform legislation by outgoing Judiciary Committee Chairman Patrick Leahy (D-VT).

Sen. Leahy’s bipartisan FOIA Improvement Act of 2014, co-authored with Republican Sen. John Cornyn of Texas, proposed a host of badly needed improvements in FOIA. The bill was unanimously approved by the Senate Judiciary Committee in November and, after Sen. Rockefeller removed his hold, the bill was unanimously approved by the full Senate this week and sent to the House where FOIA reform took a backseat to last minute appropriations discussions.

We have worked with OpenTheGovernment.org and others on this bill and will be sad to see its official death at the close of this Congress.

On the decidedly “plus” side, S. 2520 would have:

  • Recodify pro-transparency standards that existed in FOIA itself as recently as the Clinton Administration, but which were rolled back during the Bush Administration. The Clinton-era standards were temporarily reinstated by Executive Order of the President. Sen. Leahy and other FOIA champions believe, however, that this standard of openness must be permanently preserved in statute rather than being subject to the political whims of whomever may be President in the future;
  • Address the overuse of “Exemption 5” to FOIA, which covers “inter-and intra-agency records,” by creating a 25-year limit on withholding pre-decisional agency documents;
  • Tackle some of the procedural inefficiencies of FOIA by encouraging proactive disclosure of frequently requested documents, and by clarifying when agencies can and cannot charge fees when they exceed statutory deadlines;
  • Strengthen the Office of Government Information Services (OGIS), the public’s FOIA ombuds¬man, by requiring that agencies notify information requestors regarding the availability of alternative dispute resolution options through OGIS as an alternative to litigation.

While it now looks like the 113th Congress will adjourn without adopting S.2520, we will join with other like-minded groups next Congress to begin the process of attempting to pass these common sense reforms all over again. We thank Sens. Leahy and Cornyn for their admirable attempt to improve the FOIA process and look forward to working with them again during the 114th Congress.

About Jessica McGilvray

Jessica McGilvray is a former member of the Washington Office government relations team.

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