Senate Judiciary Committee Introduces FOIA Reform Bill

Bill would strengthen Obama administration’s transparency mandates

John Cornyn, Patrick Leahy
John Cornyn, Patrick Leahy / AP
June 24, 2014

Sens. Patrick Leahy (D., Vt.) and John Cornyn (R., Texas) introduced a bill Tuesday to reform the Freedom of Information Act (FOIA).

Senate Judiciary Committee Chairman Leahy and Cornyn, the ranking Judiciary Republican, introduced the FOIA Improvement Act of 2014, which would strengthen Obama administration transparency mandates and reform one of the most abused FOIA exemptions.

"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 statement. "Both Democrats and Republicans understand that a commitment to transparency is a commitment to the American values of openness and accountability."

President Barack Obama and U.S. Attorney General Eric Holder directed federal agencies in 2009 to update their FOIA guidelines and operate with a presumption of openness. However, many agencies ignored the directive.

Leahy and Cornyn's bill would codify the Obama administration directive, mandating that agencies withhold records only if there is a foreseeable harm to disclosure, not just because an exemption can theoretically be applied.

The bill would also add a public-interest balancing test to determining if an agency should use exemption b(5), the so-called "deliberative process" exemption.

The deliberative process exemption was created to allow officials to have frank discussions about policy decisions, but it has become one of the most used and abused ways for government agencies to deny freedom of information requests.

Despite the Obama administration's claims that it has improved transparency and the FOIA process, the Associated Press reported earlier this year that b(5) use is at an all time high. Federal agencies used b(5) redactions to withhold information in 12 percent of processed FOIA requests in 2013.

Reforming the b(5) exemption has been one of the top items on transparency advocates' wish list.

"This skyrocketing use of exemption b(5) has proven that a legislative fix is needed," Nate Jones, the FOIA coordinator at the National Security Archive, wrote. "The White House has been unable to get agencies to comply with its clear instructions on FOIA."

The bill would also make records older than 25 years no longer subject to the deliberative process exemption.

Earlier this year, the CIA blocked release of a decades-old internal report on the Bay of Pigs invasion, claiming the document was a draft report and therefore "pre-decisional."

If passed, the FOIA Improvement Act would be the first major amendment to the FOIA since the Open Government Act of 2007.

In February the House unanimously passed a bipartisan FOIA reform bill introduced by Oversight Committee chairman Darrell Issa (R., Calif.) and Elijah Cummings (D., Md.).

If the Senate bill passes, it may have to be merged with the House bill.

"Chairman Issa is committed to FOIA reform and looks forward to working with his Senate partners," an Oversight Committee spokeswoman said in a statement to the Free Beacon.

Transparency groups applauded the proposed changes.

Danielle Brian, executive director of the Project On Government Oversight, said in a statement Tuesday that "taken together, the reforms proposed the House and Senate would go a long way to finally bring FOIA into the 21st Century."