Today the Senate passed a Freedom of Information (FOIA) bill by unanimous consent. The legislation, officially known as the FOIA Improvement Act of 2015, was shepherded through the upper chamber by its original co-sponsors — Senate Majority Whip John Cornyn (R-TX) and Judiciary Committee Chair Chuck Grassley (R-IA) and Ranking Member Patrick Leahy (D-VT). Its passage is a tribute to the willingness of members of the Judiciary Committee to work together in a bipartisan way — and partially thanks to the fortuitous fact that the president’s nomination to the U.S. Supreme Court has not yet been sent to the Senate.
The measure now moves to the House of Representatives, which itself passed similar legislation, known as the FOIA Act, earlier this year. That measure was originally authored by then Oversight and Government Reform Committee Chair Reps. Darrell Issa (R-CA) and Ranking Member Elijah Cummings (D-MD), and enjoys the strong support of current Oversight Committee Chair Jason Chaffetz (R-UT).
Similar FOIA legislation nearly made it through the legislative process last Congress, but was quietly strangled by the Obama administration. The administration engaged in a secret lobbying effort that came more fully into the light last week in part because of a FOIA request (and lawsuit) brought by Vice journalist Jason Leopold. Ironically, the Justice Department, which is responsible for overseeing government-wide FOIA policies, had written a six page lobbying memo in opposition to the bill, even targeting the bill’s codification of the administration’s own memorandum on openness.
This FOIA bill is not as strong as the version passed by the Senate last Congress but it still has real teeth. It has 4 major provisions:
- It writes into law a presumption of openness, drawing upon President Obama’s day one memo on FOIA (the one that the DOJ memo opposed codifying). In short, agencies must comply with a FOIA request unless there is a valid reason not to. This in part is a reaction to the Bush administration, whose Justice Department told agencies it would defend just about any effort to withhold information. The presumption of openness to be codified into law does not go as far as the language in Obama’s memo or the Senate bill passed last Congress because push-back forced some of the language to be dropped.
- It puts a 25 year sunset on the administration’s ability to invoke the “deliberative process” privilege to withhold information. Deliberative process is intended to allow government officials to have conversations on the development of policy without fear that the public would hear their candid advice. However, over time any plausible need for this shield evaporates while the public’s right to know persists. The most notorious example is the use of this privilege to withhold information about the Bay of Pigs, the failed 1961 U.S. invasion of Cuba. This legislation would prevent the government from invoking the privilege 25 years after the record is created (which is much longer than is necessary but still an improvement). The original Senate language would have established limits on the invocation of other privileges, but push-back narrowed the scope to just this often-abused privilege.
- It strengthens the FOIA ombudsman, a tiny agency in the National Archives, by empowering it to provide unfettered reporting to Congress on how well FOIA is being implemented in the government and make recommendations on where it should be strengthened. Currently, congressional communications from OGIS are vetted by the administration, which is viewed by some as impeding forthright and full communications.
- It pushes FOIA into the digital age. The legislation requires the creation of a digital portal and should enable better tracking of requests.
This legislation has real value, even though we would prefer an even stronger bill that had not been attenuated in part by the administration. It prevents retrenchment by the next administration and puts new tools in the hands of the public. FOIA turns 50 this year and always has been a work in progress — balancing the public’s right to know against sometimes valid and sometimes fanciful claims of a need for secrecy.
We hope the House of Representatives will speedily take up the Senate bill. We do not say this lightly, knowing all the hard work and effort the House has put into its legislation and many of its provisions that we like (and in some cases may prefer). However, because of the nature of the Senate — with its unfortunate need to pass nearly all legislation by unanimous consent and the impending Supreme Court nomination that will scramble its operations — we should take this good bill and make it law, holding on to the House’s proposal for future improvements and the next administration.
Should the House pass the Senate bill, we expect President Obama will sign the legislation, a view shared by Senator Leahy. This would be the second major bipartisan transparency bill signed by the president, joining the DATA Act, a federal spending transparency bill that the administration undermined but ultimately allowed to become law.