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Senate Judiciary Poised to Act on FOIA Reform Bill

September 17, 2014
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Sen. John Cornyn (R-TX) (L) and Chairman Patrick Leahy (D-CT) (R). (Photo by Mark Wilson/Getty Images)

Sen. John Cornyn (R-TX) (L) and Chairman Patrick Leahy (D-CT) (R). (Photo by Mark Wilson/Getty Images)

The Senate Judiciary Committee took a big step towards addressing much needed FOIA reform this week when it added the FOIA Improvement Act of 2014, S.2520, to its agenda. If the bill is held over for a week, which is standard practice for the Judiciary Committee, it means that Senators Patrick Leahy (D-VT) and John Cornyn’s (R-TX) bipartisan FOIA reform bill will be first up on the Committee’s agenda for the lame duck session.

Sens. Leahy and Cornyn are both long-time FOIA advocates, and their current efforts to strengthen the FOIA includes several important fixes geared to dislodge agencies from their continued intransigence and refusal to embrace a “presumption of disclosure.”

The Rise of B(5). Chart by Lauren Harper, compiled from AP statistics

The Rise of B(5). Chart by Lauren Harper, compiled from AP statistics

The most important thing the FOIA bill addresses is the misapplication of the b(5)exemption, which  potentially covers any “inter-agency or intra-agency memorandums or letters.” While Congress intended it to be applied sparingly, the exemption is nicknamed “withhold it because you want to ” due to its expansive scope and discretionary application. Earlier this year the The Associated Press found, and the Department of Justice’s Office of Information Policy (OIP) eventually confirmed, that the b(5) exemption was invoked a record-breaking 81,752 times in 2013, and was applied to 12 percent of all FOIA denials across the federal government. B(5) was used to hide, among other things, the names of Veterans Affairs Administration hospitals where 19 veterans died due to medical screening delays, historically significant documents on the 20-year-old Rwandan genocide, a 30-year-old history of the 53-year-old Bay of Pigs invasion, and the DOJ’s Office of Legal Counsel opinions concerning highly controversial programs, including enhanced detention and interrogation, targeted killing programs, and NSA dragnet surveillance.

Melanie Pustay, Director of the Department of Justice Office of Information Policy. Responsible for enforcing FOIA throughout the US government. From the US DOJ website.

Melanie Pustay, Director of the Department of Justice Office of Information Policy, is responsible for enforcing FOIA throughout the US government — for better or for worse. From the US DOJ website.

Further evidence that the b(5) exemption needs special Congressional attention was provided by none other than OIP director Melanie Pustay, who testified before the Senate Judiciary Committee this March that the increase of b(5) applications was due to an increase in invoking b(5) for “attorney work product and attorney client information, which is not subject to discretionary release like deliberative process is.” (emphasis added.) In so testifying, Pustay – whose office is in charge of ensuring agencies comply with and fully implement the FOIA, the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines – contradicted her own agency’s guidance circulated after the Attorney General called for more discretionary releases, which states that both “attorney work product” and “attorney client information” are subject to discretionary release.

To address the runaway b(5) exemption, the Leahy-Cornyn bill sets a 25-year sunset for b(5) claims and adds a public interest balancing test to the requirements for agencies to invoke the exemption. As OpentheGovernment.org’s Amy Bennett notes, “this narrowly tailored change to the law would help ensure that historical records are available on a timely basis. It would stem the worst abuses by allowing a court to weigh in where necessary to make sure records that would show waste, fraud, abuse, or illegality are released.”

Given government-wide overuse of the b(5) exemption, it’s well worth noting that on September 3, 2014, the Department of Defense — one of the largest agencies in the federal government — issued fully recodified, legally enforceable FOIA regulations that state (Sec 286.4) “It is DoD policy, pursuant to 32 CFR part 285, to promote government transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA and responding promptly to FOIA requests in a spirit of cooperation.” This is a great start and kudos to the DOD, but it is unlikely many other federal agencies would voluntarily follow suit without Congressional prodding.

In addition to addressing the b(5) exemption, S.2520 strengthens the FOIA ombuds Office of Government Information Services (OGIS), promotes more proactive online access to government information, and prevents agencies from charging some FOIA fees when they miss their deadlines. The bill also directly addresses regulatory shortcomings exposed by three National Security Archive government-wide FOIA audits.

Not quite a nailbiter.

The House unanimously passed a similar FOIA reform bill earlier this year.

Given that the House unanimously passed a similar bipartisan FOIA reform bill, cosponsored by Representatives Darrell Issa (R-CA), Elijah Cummings (D-MD), and Mike Quigley (D-IL), earlier this year, transparency advocates have good reason to be hopeful. For the benefits of S.2520 to be felt, however, it must pass several more hurdles for it to become law. You can help the bill’s chances by contacting your Senators to encourage them to support it, or by writing editorials and Letters to the Editor for your local paper.

Background Material and Further Reading

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