FOIA Improvement Act clears Senate hold, heads to House


Last week we wrote that the FOIA Improvement Act was facing long odds against its passage this Congress thanks to a hold on the bill placed by Sen. Jay Rockefeller, D-W.Va.

As early as this morning it looked like the bill would have to be revived next year.

Then, late this afternoon, one of the bill’s strongest champions, Sen. Patrick Leahy, D-Vt., took to the Senate floor and asked for Unanimous Consent to pass it. That consent was granted.

Presumably, this means that Rockefeller withdrew his hold. Right now it is unclear why, but no bill language was changed (though Leahy is submitting a statement for the record which, we hear, may have helped clear up Rockefeller’s concerns, or offered him a compromise). In the meantime, the Senate just passed a bill that includes significant positive changes to the Freedom of Information Act. We outlined these changes in 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. 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. (Note: This portion is expected to be removed by manager’s amendment, and isn’t in the Senate-passed version.) 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.”

Other changes, like improvements to the Office of Government Information Services, and mandatory agency audits by the Government Accountability Office, are also strong improvements over the current state of FOIA.

The bill isn’t law yet, it still has to be passed by the House and signed by President Obama. However, the odds of House passage are looking good as that chamber passed a similar piece of legislation unanimously earlier this year, and have expressed support for moving on this quickly.