Leahy and Cornyn FOIA bill promises much-needed reform

Capitol building
Congress: Maybe less useless than advertised!

The Senate Judiciary Committee’s Chairman, Sen. Pat Leahy, D-Vt., and ranking Republican, Sen. John Cornyn, R-Texas, introduced the FOIA Improvement Act of 2014 yesterday.

Its reforms are long-awaited — and much needed.

The bill, which a coalition of organizations, including Sunlight Foundation allies like the Center for Responsibility and Ethics in Washington and OpenTheGovernment.org worked on extensively, would make critical improvements. The three most exciting to us are spelled out below:

  1. It establishes a stronger presumption of openness, prohibiting withholding of information only if “the agency foresees that disclosure would harm an interest” protected by an exemption. This means that the mere plausibility that an exemption could apply isn’t enough — an argument many public interest organizations have had for far too long.
  2. It adds public interest to the b(5) exemption, which is an obtuse provision of FOIA that is abused nearly as much as it’s used. Indeed, some call it the “Withhold It Because You Want To” Exemption. It is borderline indecipherable legalese, but, in theory, it protects internal work that people wouldn’t otherwise be entitled to through typical information collection processes — specifically, civil discovery. This bill would inject a limit to using this exemption where the “public interest in disclosure” outweighs an agency’s interest in protecting the information. That standard is significantly higher (it must be a “compelling public interest in disclosure”) for information involving attorney-client privilege, but that’s true across the American legal system.
  3. It puts a 25-year time limit on the b(5) exemption(!). This is huge, for all of the reasons described in (2) above, but let’s add more flavor: According to the National Security Archive, b(5) was “used 81,752 times in 2013,” meaning it was “applied to 12 percent of 2013’s processed requests.” Its prevalence is at an all-time high, and it is frequently used in national security contexts. This means that, for instance, the CIA couldn’t block the release of internal reports on the Bay of Pigs invasion simply because it was part of an internal deliberative process when it was created.

One last point: A less-noticed issue in openness debates is how much money a proactively open government could save. The reasoning isn’t necessarily obvious, but it is compelling. A government that can shroud itself will do so, and an information-hungry public that can demand transparency will also do so. After those starting points, however, the roles are become somewhat siloed, removing the people who make policies from the actual litigation that inevitably results from this clash. It becomes a dog fight that no one’s watching.

The result that this helps feed is FOIA’s nearly $450 million price tag in 2013 alone. More than $27 million was from litigation alone, while the rest were for processing fees. While other bills that Sunlight and our partners work on, like the Access to Congressionally Mandated Reports Act, would likely reduce costs associated with openness all around significantly, the FOIA Improvement Act of 2014 should, at the very least, reduce the litigation costs by limiting one of the least wieldy and least well-wielded provisions of FOIA: the b(5) exemption.

For a thorough discussion of FOIA costs, check out CREW’s in depth discussion here.