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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 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.

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Jessica McGilvray

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

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  1. […] No luck on FOIA this Congress Jazzy Wright 12/12/14 Government Information, Legislation, OGR Congress failed to update the Freedom of Information Act despite bipartisan support in the House and Senate. The Senate approved a bill this week…The House passed a similar bill in February, but the two chambers could not agree on final language…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). Rep. Darrell Issa, R-Calif., said he also was disappointed that the House “ran out of time to address concerns in the Senate bill.” Issa said the Senate could still send a bipartisan FOIA bill to the president’s desk if Leahy and other senators were willing to accept the House language, which open-government groups say is not as strong as the Senate version… Asked about the FOIA bill Thursday, Boehner said he had “no knowledge of what the plan is for that bill,” a statement Bennett called puzzling. […]

  2. […] Before that can happen, however, Senate and House negotiators first must reconcile S. 337 with the House’s own version of FOIA reform, H.R. 653, passed unanimously in that chamber in January of this year. While similar, the bills are not identical in several substantive ways as this excellent Congressional Research Service history and side-by-side comparison details. With an extra-long summer recess to accommodate the major parties’ political conventions looming, and a legislative calendar further truncated by the 2016 elections themselves, time will be tight if Congress and the public are to avoid the sad situation we were left in at the end of the 113th Congress when time simply ran out to enact FOIA reform in 2014! […]

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