Celebrating Freedom of Information Act reform in Congress, and the road ahead

U.S. Capitol. (Photo credit: Bill Rand/Flickr)

Monday’s vote in the U.S. House of Representatives to send the FOIA Improvement Act of 2016 to the White House is the culmination of a decade of work from a coalition of advocates to reform the Freedom of Information Act (FOIA). The bill codifies a “presumption of openness,” strengthens the proactive disclosure of information in digital formats and the Office of Government Information Services, directs the White House to create software for creating requests, and requires all federal agencies to update their regulations.

The passage of the bipartisan bill was applauded on both sides of the aisle, as it should be: The path to any historic reform in Congress is a long and winding one, with fits, starts, disappointments, setbacks, frustration and, in the case of FOIA reform, secret opposition from agencies, financial interests and the Justice Department itself, followed by failure. Thankfully, we saw a different outcome in 2016. A C-SPAN video of statements on the House floor supporting the bill is embedded below.

This morning, the White House confirmed that President Obama will sign it into law.

“The President looks forward to signing into law the FOIA Improvement Act of 2016, which makes important upgrades to the FOIA system established nearly 50 years ago,” said White House spokesperson Brandi Hoffine, in a statement.

On his first day in office, President Obama issued a memorandum to the heads of executive agencies directing that FOIA be administered with a clear presumption: “in the face of doubt, openness prevails.” This legislation helps to ensure that presumption will apply across administrations by requiring agencies to withhold information only where a “foreseeable harm” exists, codifying the standard established by this Administration.

We are thrilled that the president will sign the bill into law and urge him to do so publicly, in the company of the bipartisan group of lawmakers who championed reform over the past few years and the coalition of advocates who supported their efforts.

Special thanks go to Reps. Darrell Issa, R-Calif., Jason Chaffetz, R-Utah, and Elijah Cummings, D-Md., for their commitment over the past three years; Sens. John Cornyn, R-Texas, Chuck Grassley, R-Iowa, and Pat Leahy, D-Vt., who have been open government champions; and to our allies at OpenTheGovernment.org, Electronic Frontier Foundation and Sunshine in Government, among dozens of other advocates.

As we noted at the outset, this bill will codify the presumption of openness into U.S. law for the next administration, removing the option for the next president to write it away with the executive’s pen. This is a critical distinction for whomever occupies the Oval Office and directs information policy in 2017. On that count, we hope that the White House will invest more political capital (and actual capital) in the final months of this year, carrying through on the initiatives that are already in process. As Hoffine writes:

As part of its ongoing efforts to improve transparency, the Administration has already begun to implement various elements of the legislation, including a single access website where individuals can submit requests for information to multiple agencies at once and track the status of those requests.

Given the Justice Department’s apparent lack of will to come through on its public statements regarding building the software that the United States committed to creating in the two last National Action Plans on Open Government, including a statement that working on such a portal is not a priority at a recent conference at Columbia University, we hope that the actions of the administration will follow their words.

There is ample room for modern technology to improve how information is requested, tracked and disclosed to the public. We hope that the Office of Management and Budget (OMB) will invest resources immediately in reviving this project, instead of waiting for the next administration to take it up.

The Obama administration is clearly aware of the potential to use the internet as a platform for disclosure, going back to the election in 2008, and Sunlight has celebrated efforts to do so.

“In addition to these efforts, the Administration has worked to make government information more readily available without needing to file a FOIA request,” said Hoffine. “This effort includes the monthly publication of White House visitor logs, with more than 5 million records released to date, and Data.gov, which makes available more than 180,000 data sets of government information on topics ranging from education, to climate, to public health. We look forward to continuing to improve access to government information by signing this bill into law.”

When it comes to connecting these open data efforts to FOIA, however, the Obama administration has fallen short of making an explicit connection between requests for data and publishing those requests. That should change. Commercial requesters make up a large amount of the requests, and yet the administration has not adjusted by proactively disclosing those records and the data behind them on Data.gov, following the money as a demand signal to understand where value lies.

This bill is not a panacea for all the ills that persist around the use of FOIA. For instance, there is nothing stopping agencies from posting an email address for chief FOIA officers. Some structural issues that can and should be addressed by this Congress exercising its oversight function, communicating with the strengthened Office of Government Information Services. Others will be improved by senior agency leadership taking a stronger interest in information disclosure policy that explicitly connects open data policies to FOIA requests.

The bill also does not allocate additional funding for processing requests, including investment in staffing and training to guide agencies not only toward the presumption of openness but to increase the capacity of those agencies to respond to the rising volume of requests. Both of these areas do not require Congress to pass sweeping reforms. They simply require political will, leadership and firm guidance from OMB and the Department of Justice, along with better stewardship of taxpayer dollars in technology investments.

One of the clear lessons from the last seven years, however, is that speeches, memoranda and directives regarding FOIA or open government writ large are not sufficient for their implementation. Any future administration must invest more political capital in making open government a priority and proactively involving the country in a discussion about how transparency should balance with privacy and security — instead of reacting to leaks, breaches and hacks.

On that count, it is disappointing to see the White House be largely silent online, save for emailing statements to reporters, regarding the president’s intention to sign FOIA reform into law. The White House Open Government Initiative, in its best form, should have been pushing Congress to enact the strongest possible for FOIA reform, gathering public support for codifying the administration’s own policies into law. At the very minimum, the modern communication tools that the White House digital staff has developed for promulgating the president’s message, visits, statements and events could have been directed toward celebrating a signal moment in our country’s democratic progress. Instead, a White House press secretary simply noted publicly that Congress did not subject itself to FOIA. The statement provided to the public extends this argument, noting, “We continue to believe that extending FOIA to Congress would serve as another important step in increasing government transparency.”

We hope that a future Congress will consider whether more of its records should be subject to public request, and welcome a public debate over whether doing so would increase trust in government. That’s as it should be, but it should not detract or distract from the need to improve how the executive branch of the federal government creates, organizes, stores or discloses information.

Our democracy is not and will not ever be in a settled state. Core issues of information creation, disclosure and usage are now at the heart of every sector and function of government and governance. Information is power, and when the public gains more information about what is being done in their name, contextualized and verified by trusted infomediaries, it strengthens our society. Congress reforming FOIA is one more step in the long march of progress toward a more equitable, just and accountable government.

As FOIA turns 50 next month on July Fourth, it is heartening to see that bipartisanship in the service of good government is still a shared value in Washington. We hope that implementation of this law will be equally bipartisan, embraced by this and future administrations as a core function of their responsibilities to ensure that our government of the people is accountable to the people.