Blog — Senate Members

February 09, 2015

New FOIA Legislation — The Good, The Bad, and The Ugly

By Anne Weismann

FOIA File StacksLast Monday, eager to defy expectations and prove they are capable of governing, both the House and the Senate introduced new FOIA legislation.  The Senate Bill, which is strikingly similar to the one Senators Leahy and Cornyn introduced last session that nearly squeaked by, cleared the Judiciary Committee on Wednesday.  The House bill goes a bit further, especially in correcting some of the worst abuses of Exemption 5, the “withhold because you can” exemption.

A number of open government groups already have done a good job of explaining how each bill would change the existing law and highlighting the differences between the two bills.  Nate Jones at the National Security Archive, for example, has a good explanation here.

CREW has joined 46 other groups in urging Congress to pass the strongest FOIA bill possible.  But this raises the question of just what that bill should look like.  From our perspective one thing is clear:  meaningful FOIA reform must address the areas of greatest abuse, which include an overuse of Exemption 5.  Exemption 5 protects certain privileged interagency or intra-agency communications, and is relied on widely to withhold material that explains why an agency chose a particular course of action or policy.  In other words, Exemption 5 bars access to the kind of information the public is most interested in seeing.

The Department of Justice is a key abuser, invoking Exemption 5 to keep its Office of Legal Counsel opinions from the public, even though OLC opinions represent the position of the executive branch on the meaning of a statute or other legal obligation and agencies are bound by that position.  This has resulted in a growing body of “secret law,” leaving the public to guess at the legal rationale for many controversial subjects of great public interest.

The Senate bill offers little relief for this abuse beyond a provision prohibiting agencies from withholding material under Exemption 5 that is more than 25 years old.  If this language passes, we will be spared another Bay of Pigs debacle where the CIA withheld a 50-year old historical treatise on the Bay of Pigs, prepared initially for publication, just because it could.

The new House language offers greater promise of stemming the overuse of Exemption 5 by carving out from the exemption “records that embody the working law, effective policy, or the final decision of the agency.”  Since this is the very essence of many OLC opinions – the embodiment of “working law” or “effective policy” — the House bill would address one of the worst abuses. 

Senator Leahy’s original bill — the one that died just before the session ended — would have gone even further by adding a balancing test to Exemption 5.  Under that test, agencies and reviewing courts would have been required to weigh the government’s interest in secrecy against the public interest in disclosure, giving requesters like CREW at least a fighting chance to access the real story behind agency decisions.  But that provision proved too controversial and far reaching, and was gone from the bill by the time it made it back to the House for action.

From the last go-around on a FOIA bill we can expect enormous opposition from the Department of Justice, which doesn’t seem to be following President Obama’s script about a new, more transparent America.  The president also has yet to weigh in on the FOIA legislation, and word is that last time the White House weighed in behind the scenes in strong opposition to any changes to the FOIA.  It’s not too late for the president and his administration to make good on his promise of transparency through strong support for a FOIA bill that will deliver the transparency he claims to want.

Nearly 30 years ago, Congress took the first bold step of passing legislation that mandates public access to records that tell us what our government is up to and why.  Unfortunately, in the intervening years agencies have worked hard to find and exploit loopholes in the law, requiring Congress to make corrections every decade or so.  We need such a correction now and therefore urge Congress to pass the strongest FOIA bill possible.

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