Senators introduce bipartisan FOIA amendment

Two senators crossed party lines in support of legislation that would strengthen the current Freedom of Information Act and diminish agencies’ excuses for withholding documents.

Senators Patrick Leahy (D-Vt.) and John Cornyn (R-Tex.) introduced the bill June 24 after the Senate Judiciary Committee held a meeting in March to discuss changes to the FOIA.

“The Freedom of Information Act is one of our nation’s most important laws, established to give Americans greater access to their government and to hold government accountable,” Leahy said in a press release.

Amendments included in the bill would standardize the presumption of openness so that an agency could only withhold information if it “reasonably foresees a specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.”

Although courts have interpreted the FOIA to include a presumption of openness, this amendment sets a policy that, in the past, changed with each change in administration, said Amy Bennett, assistant director of OpenTheGovernment.org.

“We think that it’s really critical it’s written in the law because each administration that comes in has taken a different approach to FOIA,” Bennett said. “That’s confusing to agencies.”

The bill will give the Office of Government Information Services more independence by allowing the office to report directly to Congress and the president, and it will provide clarifications on several aspects of the current FOIA, such as Exemption 5.

As it currently stands, Exemption 5 of the FOIA prevents the release of documents that would be exempt from discovery in civil or criminal court cases, as well as “pre-decisional” communication – communication within the agency leading up to a decision about agency policy. The amendment would create a public interest balancing test for those documents, releasing such documents to the public if the importance of disclosure outweighs agency interests. Under the current statute, once an agency shows that a document is “pre-decisional,” there is no way for a requester to argue for release.

Bennett said these modifications to Exemption 5 will give requestors the ammunition they need to force agencies to release certain documents.

“It addresses something that has become a real problem for requestors,” Bennett said.

If passed, the bill will be the broadest amendment to the FOIA since the Open Government Act of 2007. Congress last passed amendments to FOIA in 2009 that require agencies to justify inserting additional exemptions into proposed legislation.

Bennett said she was glad to see those modifications to the amendment after she presented her qualms with the current FOIA at the Senate Judiciary Committee’s hearing on the act in March.

“Senator Leahy and Senator Cornyn took our concerns very seriously,” she said. “We’ve seen a really good show of support from the open government community for this bill, and we certainly hope that it helps push it through Congress.”

Bennett said OpenTheGovernment.org did not see the senators address everything they would like to see improved about the FOIA, such as limiting the number of statutes included under Exemption 3, which allows legislatures to add exemptions into specific laws on a case-by-case basis.

Although the 2009 amendment required agencies to explain why they exempt documents from disclosure, Bennett said she does not know what statutes have been passed that exempt documents from requestors.

“[The government is] just cluttering up the code and making it difficult for requestors,” Bennett said.

However, this new amendment will include an audit by the Government Accountability Office on the statutes that are currently in place.

“At least we’ll know what we’re battling against,” Bennett said.

Related Reporters Committee resources:

· Federal Open Government Guide