Congress has returned from a month-long recess with a full plate and few legislative days left. Although it faces many competing priorities, Congress must pass the FOIA Improvement Act of 2014, a bill that enjoys bipartisan support in both the House and the Senate. If enacted, this legislation truly will be a game changer, restoring the Freedom of Information Act to its original intended purpose of offering a “check against corruption” and “hold[ing] the governors accountable to the governed,” in the words of the Supreme Court.
Key provisions of the legislation, introduced by Senate Judiciary Chairman Patrick J. Leahy, D-Vt., and Sen. John Cornyn, R-Texas, would strengthen the Office of Government Information Services, the intended ombudsman for resolving FOIA disputes; codify the policy of President Barack Obama and Attorney General Eric H. Holder Jr. to withhold information only where there is foreseeable harm; and perhaps most significantly, amend FOIA Exemption 5 to permit FOIA requesters to demonstrate a public interest in requested material that outweighs the government’s interest in protecting attorney work product and material falling within the deliberative process privilege.
Obama entered office pledging to run the most transparent administration in modern history, something that depended on the proper administration of the FOIA. Attorney General Holder followed up with a policy directive outlining how the FOIA would be used to achieve that openness. But this promise has yet to be fulfilled. What neither may have anticipated is the long-entrenched reluctance of agencies to reveal their inner workings, which has left secrecy, not disclosure, as the default under the FOIA.
As part of this insistence on concealment, the CIA fought vigorously to keep from the public a written history of the Bay of Pigs, prepared long ago and withheld even though two other volumes of the three-volume set were released publicly. Likewise, the Office of Legal Counsel at the Department of Justice has battled to keep its formal legal opinions secret, including most notably its opinion explaining the legal justification for targeted killings of American citizens on foreign soil. Intelligence agencies also have insisted on keeping from the public the legal rationale for the government’s massive bulk data collections, a secrecy that goes hand in hand with the clandestine Foreign Intelligence Surveillance Court, charged with approving applications for electronic surveillance, which could hardly be more opaque.
We need this legislation, and we need it now. With proof that policy directives and talk of transparency alone fail to bring about real change, the FOIA Improvement Act offers the only way to pierce the veil of secrecy shrouding our government. Moreover, the bipartisan support behind this bill presents a perfect storm for FOIA reform, one we are unlikely to see again for quite some time.
My organization, Citizens for Responsibility and Ethics in Washington, has fought long and hard to force the government to reveal its rationale behind any number of controversial policies, practices, and decisions. The public interest in learning the legal justification for the FBI’s use of drones, why the Department of Justice refused to prosecute a long list of prominent members of Congress, and why the Department of Veterans Affairs pressured medical personnel to under-diagnose Post Traumatic Stress Syndrome as a cost-savings measure could not be stronger. Yet time and again, the government has successfully resisted disclosure of documents under the FOIA that would answer these questions on the ground the requested materials are covered by the deliberative process privilege. In support, the government has argued disclosure would harm its internal decision making process, a harm expressed largely in recycled platitudes and generalities about the fallout of operating in a fishbowl and the chilling effect disclosure would have on the willingness of federal employees to offer their candid recommendations. As currently written, the FOIA provides no opportunity to counter those harms with evidence of the public interests disclosure would advance.
If Congress passes the FOIA Improvement Act of 2014, FOIA requesters, for the first time, will have an opportunity to argue whatever the harm to an agency’s internal deliberations, that harm is outweighed by the public interest in being able to evaluate the rationale for controversial programs and policies and their impact on the rights and privileges we enjoy as American citizens. We will be better able to understand the justification for intruding so deeply on our Fourth Amendment rights through programs like the government’s monitoring of phone calls and email. Armed with this knowledge, we will be better able to exercise our rights as voters. This is the process that will allow us to hold the governors accountable to those they govern. Congress needs to pass this legislation because it will restore to the FOIA its original, intended purpose.
Anne L. Weismann is chief counsel for Citizens for Responsibility and Ethics in Washington and a steering committee member of OpenTheGovernment.org.