On June 24, Sens. Patrick J. Leahy, D-Vt., and John Cornyn, R-Texas, unveiled the FOIA Improvement Act of 2014, a bill that would deal with some of the long-standing issues the public faces when trying to use the federal Freedom of Information Act (FOIA) to obtain government records. The common-sense reforms included in the bill are changes that President Obama can, and should, embrace in order to meet his goal of unprecedented levels of openness in government.
Both the president’s supporters and detractors often refer to his first-day pledge of transparency. From my organization’s point of view, while secrecy in the name of national security continues to run amok, President Obama has taken a number of important steps to encourage federal agencies to be more open and responsive. We have welcomed many of the president’s policies; making agencies change their practices, however, is much harder than issuing a memo or executive order.
Nowhere is the lag between policy and reality more apparent than as it relates to the FOIA. President Obama’s FOIA memo (also issued on his first day in office) and Attorney General Eric Holder’s guidelines are clear: Federal agencies should process all public requests for records under the assumption that they should be made available, and even if the record could be withheld under the law, it should be released unless there is an identifiable harm. The Obama administration recently redoubled its efforts to make FOIA a better process for the public. Notably, they launched a new FOIA Modernization Federal Advisory Committee to create a venue where government officials and people who are trying to use the process can work together. Additionally, they kicked off efforts to make it easier for requesters to understand how to make requests for information from all of the 100 or so components of the federal government that process requests.
Nonetheless, people who frequently use the FOIA process to try to obtain government records report little change in agencies’ attitudes toward the release of records.
Indeed, annual statistics that track the number of times agencies opt to withhold records suggest that many exemptions are being used more, not less. In other words, it appears some agencies have missed the memo.
The bipartisan FOIA Improvement Act helps make the promise of transparency reachable.
A key provision in the bill would write into law President Obama’s directive on releasing records where there is no foreseeable harm. The Obama policy is in stark contrast to the message sent by the Bush administration, which urged agencies to use almost any reason to deny the public access to any record – and said the Justice Department would back them up all the way to court. Audits by our coalition partner, the National Security Archive, have found, however, that the changes in administration policy actually have little effect on agency practice. Putting the power of law behind the policy, and ensuring it would not be easily overturned by the next administration, would help ensure that agencies take the letter and the spirit of the directive to heart.
Critically, the FOIA Improvement Act also makes common-sense changes to one of the most over-used and abused exemptions to the law: Exemption Five. The original intent of the exemption was to make sure employees are able to be frank and honest about their opinions before a final decision is made, by allowing withholding of inter- and intra-agency records of policy discussions. Over time, the use of the exemption has expanded so that it covers practically any record that is not identified as “final.” The bill checks agencies’ power to keep records secret under Exemption Five by requiring agencies to weigh the public interest in the document’s release, and preventing use of the exemption on any document more than 25 years old. These changes provide a lever to better pry free records the government would prefer to keep secret, and could greatly help the public better understand how and why the government has made its choices.
That is change we would all like to see. We urge President Obama to support these reforms.
Amy Bennett is assistant director of OpenTheGovernment.org.