Senate to move on FOIA Improvement Act in lame duck

A heavily redacted FOIA request. Photo credit: Wikimedia Commons.

The Senate Judiciary Committee is slated to vote on Sens. Patrick Leahy and John Cornyn’s FOIA Improvement Act on Thursday. It had been scheduled for last week, but Leahy moved it: “Because of scheduling challenges in the Senate this Thursday, we are likely to hold the Committee markup off the floor this week. This FOIA bill should be debated in full public view, and so we will hold over our legislation this week so all members and the public can participate in this important debate.”

We’ve just gotten a hold of the manager’s amendment — that is, an amendment that collects and addresses several changes offered by members of the committee — that changes how the FOIA Improvement Act looks.

  1. We lost the public interest balancing test for b(5). B(5) refers to an exemption used to withhold disclosure, and is often used to protect internal work that people wouldn’t otherwise be entitled to through typical information collection processes — specifically, civil discovery. This is the most significant change, and it’s definitely a disappointment. However, we’ve kept the 25-year time limit to b(5), which is a huge improvement over the status quo.
  2. The fee fix, which blocked an agency from collecting fees in certain contexts, has a limit if the request would produce more than 50,000 responsive records, given that the agency tried to contact the requester to narrow it. 50,000 is a big number, so we can live with that.
  3. There’s a new GAO report on backlog reduction methods. GAO also must audit three or more agencies every two years.
  4. OMB has to build a centralized portal.

Even if not as grand as its original incarnation, the bill, post-manager’s-amendment, is a much-needed, strong reform of one of America’s most important transparency laws. The bill is here, and the senators’ brief write-up on it is here.

The good news, amendments aside, is that wherever there may be compromises in this bill, it’s not a bill built on sacrifices. In other words, everyone agrees a step forward is necessary, but not everyone agrees how big a step. What that means for the FOIA Improvement Act is that even after losing some of its provisions, the public is still gaining something significant.

Here’s my broad review of the FOIA Improvement Act from a previous post:

  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 the public interest has been forced into for far too long.
  2. [Note: This portion is expected to be removed by manager’s amendment:] 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 in the context of 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 bullet two 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 usage is at an all-time high, and it is frequently summoned 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 the decades-old document is still marked “draft.”