This week is Sunshine Week, an annual celebration to promote government transparency and access to information. As a public interest organization dedicated to these ideals, EFF continues to call on Congress to update the Freedom of Information Act, a key tool for citizens to obtain federal government records and to hold federal agencies accountable.
Two FOIA reform bills are pending in Congress. The Senate bill is the FOIA Improvement Act of 2015 (S. 337), which the Senate Judiciary Committee passed in February. The House bill, the FOIA Oversight and Implementation Act of 2015 (H.R. 653), has yet to be considered by the House Committee on Oversight and Government Reform.
An important aspect of both bills is that they narrow Exemption 5, which permits an agency to withhold inter-agency or intra-agency “pre-decisional” memos and other documents that reflect the agency’s “deliberative process” in reaching a final decision. Congress’ legitimate policy goal in enacting Exemption 5 was to permit some level of confidentiality in order to promote candor among agency employees.
Both bills create a time limit for documents withheld under Exemption 5, meaning that even if Exemption 5 technically applies to records, if the records are older than 25 years from the date of the FOIA request, the agency cannot withhold them from disclosure. The House bill goes a step further and requires disclosure of “records that embody the working law, effective policy, or the final decision of the agency.”
These reforms are important, particularly the language in the House bill, because Exemption 5 has been inappropriately used by many federal agencies to withhold documents that are arguably final decisions. The exemption has been used by the Justice Department, in particular, to withhold opinions by the Office of Legal Counsel (OLC), which is considered the authoritative source on how the Executive Branch interprets the law.
We lost a FOIA lawsuit last year that sought to obtain an OLC opinion that authorized the FBI’s use of “National Security Letters” to obtain citizens’ call logs without legal process and contrary to existing law. The ACLU and the New York Times won a similar lawsuit to obtain the OLC opinion authorizing the “targeted killing” of Americans only because the government had voided its ability to invoke Exemption 5 when it made various public statements about the targeted killing program.
One disappointing aspect of the FOIA reform bills is that they do not include a public interest balancing test for Exemption 5. Such language was originally included in the Senate bill last Congress, but it was stripped out at the last minute and not included in either bill this Congress. A public interest balancing test would require the disclosure of records if the public interest in doing so outweighs the agency’s interest in withholding the documents. This would give federal judges the power to order disclosure even if the agency appropriately invokes Exemption 5. The House bill does include language that directs the agencies to generally consider “whether the release of the records would be in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.”
If FOIA made clear that agencies cannot withhold documents that reflect the “working law, effective policy, or the final decision of the agency,” and agencies and judges must consider the public interest in disclosure even if Exemption 5 technically applies, perhaps we would have won our lawsuit and the ACLU and New York Times would not have had to rely on unique facts to win their case. Without public access to OLC opinions, which have also authorized torture and warrantless wiretapping, the federal government creates a body of secret law, which is antithetical to a democratic society.
Notwithstanding the importance of narrowing the scope of Exemption 5, it is important to note that FOIA exemptions are generally discretionary, meaning that even if an exemption technically applies to a request, an agency has the discretion to disclose the records anyway. The FOIA reform bills would force greater transparency by codifying the Obama administration’s policy that agencies should implement FOIA under a presumption of openness and that records should only be withheld if the agencies can “reasonably foresee” harm from disclosure, not merely because an exemption technically applies. This would prohibit future administrations from shifting to a less transparent FOIA policy, which was the case with the last Bush administration.
The FOIA reform bills also strengthen the Office of Government Information Services (OGIS), also known as the FOIA ombudsman, that works with requesters and agencies to resolve FOIA disputes in order to avoid costly litigation. Both bills clarify that OGIS can issue its annual report (with recommendations for how agencies can improve FOIA implementation) without obtaining prior approval from any other Executive Branch agency or office, which has been a problem in the past. The Senate bill also provides that OGIS can issue advisory opinions on disputes between requesters and agencies at anytime, either pursuant to its own discretion or a request from a party (current law only authorizes advisory opinions pursuant to OGIS’s discretion and after mediation fails).
Finally, both bills mandate the creation of a “consolidated online request portal” to provide the public with a “one-stop shop” for submitting FOIA requests to federal agencies, which is already underway by a few select agencies at FOIAonline.
While the FOIA reform bills could go further in improving FOIA implementation, they both offer meaningful changes that would enhance government transparency and advance the public’s right to know. We urge Congress to be true to the spirit of Sunshine Week and pass FOIA reform legislation as soon as possible.