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Here's How the Senate Should Fix the FOIA Reform Bill

With the U.S. House of Representatives passing a bill this week to amend the Freedom of Information Act (FOIA), EFF and a coalition of other groups are calling on members of the Senate  [.pdf] to pass a law that meaningfully improves government transparency and accountability through access to federal records. 

It is becoming something of an annual tradition for Congress to introduce FOIA legislation with overwhelming bipartisan support. This year’s bill is the FOIA Oversight and Implementation Act (H.R. 653), and it contains many of the same amendments to FOIA found in recent bills, including narrowing some of the most-abused exemptions in the law.

Even though members of both the House and Senate have strongly supported past FOIA bills, Congress has failed to pass a law after agencies subject to the bills’ heightened transparency requirements pushed back. For example, in 2014 the U.S. Department of Justice was instrumental in killing FOIA reform.

Despite what is likely to be another fight against DOJ and other federal agencies, EFF remains optimistic that Congress will pass comprehensive FOIA legislation this year. As the bill waits to be heard in the Senate, below is a summary of the good and bad aspects of the legislation along with some proposals EFF would like lawmakers to consider adding. 

The Good

The most significant provision of the bill prevents agencies from withholding records unless they can identify a “foreseeable harm” to one of the interests protected by FOIA’s nine exemptions. This provision would cut back on agency discretion to withhold records that may technically fall within an exemption. Further, it is buttressed by other sections of the bill that require agencies to proactively disclose more records.

The bill, like its predecessors, also narrows what agencies can withhold under Exemption 5, which exempts internal or inter-agency “pre-decisional” memos and other documents that reflect the agency’s “deliberative process” in reaching a final decision. Despite Congress crafting Exemption 5’s deliberative process privilege to encourage robust internal agency debate, it has become one of the most overused and abused FOIA exemptions.

The bill passed this week would prevent agencies from using the exemption to withhold documents that are more than 25 years old while also prohibiting its use on final agency opinions that have the force of law or any final guidance that would impact the public

Other improvements in the bill include making it easier for courts to award attorneys fees to requesters who sue for access to records and requiring that all federal agencies accept requests via email.

For more details about the bill, read the National Security Archive’s summary.

The Bad 

Though the bill purports to increase government transparency, members of the House significantly undermined that promise with last-minute amendments for intelligence agencies that will almost certainly result in greater secrecy.

The most troubling provision of the bill is a section that would prohibit disclosure of records that “would adversely affect intelligence sources and methods.” FOIA already contains an exemption for properly classified material, and there are a number of other federal laws that prevent disclosure of intelligence sources and methods, so what would the new language cover? The carve-out does not define what “adversely affect” means, so intelligence agencies would have a great deal of discretion to expand the types of records they can keep secret.

Other bad provisions of the law exempt intelligence and surveillance agencies from two important procedural fixes to FOIA. 

First, under the new bill agencies are required to inform requesters when they consult with another agency in response to a particular request. Consultations are when one agency has responsive records that are largely based on records generated by another agency. Second, agencies would have to publish a list of all of the material they denied access to under FOIA unless the disclosure was prohibited by law.

The current bill exempts all intelligence agencies from those fixes, which is a huge step in the wrong direction.

Given EFF’s longstanding fight against government secrecy and mass surveillance, the last-minute inclusion of these provisions and a lack of any public justification for why these agencies should be treated differently is unacceptable.

What Should Be in the Bill

On top of removing the bad provisions regarding the intelligence agencies, the Senate should amend the legislation to allow for greater public access to records.

Chief among the changes EFF would like to see is the creation of a public interest balancing test for Exemption 5. This proposal, which has been in previous FOIA reform bills, would require information that may fall under Exemption 5 to still be disclosed if a requester can show that doing so is in the public interest. Thus, a court could override an agency claim of Exemption 5.

If that provision was already in FOIA, EFF may have won a lawsuit seeking legal memos on the use of National Security Letters to obtain citizens’ call logs without legal process.

The Senate should also add an amendment to clarify when agencies can withhold law enforcement techniques and procedures under FOIA Exemption 7(E). Federal courts have interpreted the exemption differently, with some requiring agencies to show that disclosing the records would give potential lawbreakers a roadmap on how to evade law enforcement or otherwise break the law. Other courts have allowed agencies to withhold the records without having to make such a showing. EFF believes that agencies should have to at least justify withholding law enforcement techniques, particularly given that they are often controversial. 

EFF looks forward to working with other public interest groups and members of Congress to create meaningful reforms to FOIA that improve a law even lawmakers admit is broken. The current bill is a step forward, though lawmakers must ensure that the current bill results in more than mere cosmetic changes to FOIA.

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