The 113th Congress is winding to a close and however few things Speaker John A. Boehner, R-Ohio, and President Barack Obama agree on, both dropped the ball on making the government more accountable and transparent.
This year, news broke that the Department of Homeland Security had mishandled 23,000 Freedom of Information Act requests in 2012, and that the Central Intelligence Agency defeated a lawsuit that would have — and should have — unveiled its secret history of the Bay of Pigs. These two stories are not only about the government’s transparency failures, they also reveal the urgent need for Congress to reform FOIA.
The FOIA Improvement Act of 2014 just died at the finish line, after the House failed to take up bill that had already passed the Senate. The failure indicates a stunning lack of commitment from the top ranks of both Democratic and Republican leadership. The news is particularly frustrating given that the bill was introduced this summer by current Senate Judiciary Chairman Patrick J. Leahy, D-Vt., and Sen. John Cornyn, R-Texas — two influential, veteran lawmakers who have distinguished themselves as advocates for good government.
The Freedom of Information Act, signed into law after the Watergate scandal, guarantees public access to government information except for some that is specifically exempted. Throughout the years, activists, journalists, researchers and others have used FOIA to uncover waste, fraud, abuse and illegal activities by government actors. It’s the invaluable tool that led to the publication of documents detailing torture at Guantánamo Bay, Cuba. It’s the tool that unearthed J. Edgar Hoover’s FBI file on Beatles star John Lennon. Today, it’s the statute at the heart of a lawsuit that aims to force agencies within the intelligence community to disclose more information about their admitted role helping apartheid South Africa capture Nelson Mandela — which led to his 27-year imprisonment.
The FOIA Improvement Act would have legislatively mandated that agencies respond to FOIA requests with a presumption of openness, codifying President Barack Obama’s executive order so future presidents wouldn’t be able to reverse it without approval from Congress and judges would have more power to review discretionary decisions to withhold information. It also would have empowered oversight by strengthening the Office of Government Information Services (the public’s FOIA ombudsman) and by requiring the Government Accountability Office to audit agencies on a regular basis. It was a GAO audit that revealed the DHS mishandled 23,000 FOIA requests in 2012.
Perhaps most importantly, this legislation aimed to change how historical information is rescued from a growing government shadow. Exemption 5 to FOIA — known as the “deliberative” or “withhold it because you want to” exemption — has become the bulletproof go-to for agencies for all the wrong reasons.
Among other things, Exemption 5 allows the government to withhold any information that the government claims is deliberative. The aforementioned secret CIA history of the Bay of Pigs disaster — already more than 30 years old — is an example of one secret that shouldn’t be kept any longer, and of one item the public will have access to only once the FOIA Improvement Act passes. It’s worth noting that properly classified information is covered by a different exemption, and such information would be redacted from the volume either way.
Exemption 5 is particularly alarming because government officials are realizing they can lock up information that should be public just by using a “draft” stamp: Use of this exemption, which also includes things like attorney work product, is at an all-time high.
Sure, some of what transparency in government reveals is embarrassing, like when someone from the Department of State called the notion that Pakistan was providing refuge to Osama bin Laden “a bunch of crap!!” But such a document is more than just embarrassing, it’s illuminating and instructive. It impacts how we as a people and a country make decisions, decisions that depend on the accuracy of and access to information.
If Boehner and Obama truly care about accountable, transparent government, they will take up the FOIA Improvement Act in 2015 and ensure that this time, it passes.
Sean Vitka is the federal policy manager at the Sunlight Foundation.