Fixing FOIA: Senate-passed bill is a good start, but more is needed
The Senate’s passage Tuesday of a bill to amend the Freedom of Information Act is a good step toward improving government transparency. Congress, however, can and should do more to fix the 50-year-old federal sunshine law.
Coinciding with Sunshine Week, an annual celebration by journalists and transparency advocates seeking greater government openness, the Senate unanimously passed an amended version of The FOIA Improvement Act of 2015 (S. 337), which was sponsored by Senators Patrick Leahy (D-VT.) and John Cornyn (R-TX.).
EFF supports the Senate bill, particularly because it does not enable greater secrecy for national security agencies, unlike a House bill passed in January. However, the Senate bill does not address several of FOIA’s fundamental problems.
As the House considers whether to pass the Senate bill and send it to President Obama, who has signaled that he would sign it into law, below is a summary of how S. 337 would improve FOIA and what other reforms EFF believes are needed to fix the law.
Senate bill restricts agency discretion to withhold records
The Senate bill contains similar provisions to those passed by the House in January, including one that prohibits the withholding of records unless agencies can identify a “foreseeable harm” to one of the interests protected by FOIA’s nine exemptions, or release of the documents is specifically prohibited by law.
Importantly, the Senate bill does not mandate the withholding of records that “would adversely affect intelligence sources and methods.” As EFF previously pointed out, that language was included in the House bill and could arguably lead greater secrecy. The language is also unnecessary because intelligence sources and methods are already protected by FOIA Exemptions 1 and 3.
We appreciate that the Senate bill does not contain a similar carve out for intelligence agencies and we remain cautiously optimistic that, if enacted into law, the “foreseeable harm” requirement will lead to greater openness.
The Senate bill also includes a time limit for how long agencies can withhold records that chronicle internal agency deliberations. Specifically, the bill prohibits agencies from withholding documents under the deliberative process privilege if they are more than 25 years old. This provision is an attempt to limit agencies’ reliance on Exemption 5, which has earned the nickname the “withhold it because you want to” exemption because it is so often misused to withhold records.
However, the Senate bill does not go far enough in limiting the use of Exemption 5. In addition to allowing agencies to withhold records describing internal deliberations, Exemption 5 allows agencies to withhold other privileged records, such as attorney-client communications. When the Senate bill was originally introduced last year, the 25-year sunset applied to all documents withheld under Exemption 5, not just when the agency cited the deliberative process privilege. Sponsors of the Senate bill appear to have limited the application of the 25-year sunset to overcome objections of some senators who have held up the bill for more than a year.
In a twist, the House bill actually does more to limit agency withholdings under Exemption 5. In addition to applying the 25-year sunset to all documents withheld under the privileges protected by Exemption 5, the House bill explicitly prohibits agencies from withholding particular documents, such as final agency opinions that have the force of law.
The Senate’s effort to limit Exemption 5 is appreciated, but it falls short of what is needed. EFF has seen firsthand how agencies misuse the exemption to keep secret controversial legal memos justifying mass surveillance.
The Senate bill also places an emphasis on technology by calling for the creation of a central online FOIA portal that would allow the public to request records from multiple agencies simultaneously, and bolstering requirements for agencies to proactively disclose records in electronic formats.
Finally, the bill limits agencies’ ability to charge fees to FOIA requesters when they fail to fulfill the request within the statute’s 20-day response deadline.
More is required to truly fix FOIA
The Senate timed passage of its bill this week to coincide with FOIA’s 50th birthday. Yet despite its age and promise of government transparency, there are serious deficiencies in how FOIA actually works, including excessive delay, agency obfuscation, and unnecessary secrecy surrounding law enforcement and national security records.
Although the Senate bill is a good start, we believe now is the time to ask for true FOIA reform. Concrete improvements should include:
- Providing resources to make FOIA a central mission of all federal agencies. Too often, FOIA is an afterthought, as employees working on complying with the law comprise some of the most under-staffed and least-funded parts of agencies. Congress is right to limit agency discretion to withhold records, but meaningful FOIA reform should include additional financial resources to combat processing delays and backlogged requests, which would signal that FOIA is a central mission for every federal agency. Unfortunately, the Senate bill explicitly states that no additional funds are authorized to carry out the new amendments. As one FOIA expert wrote, there is a “radical mismatch between the amount of money and personnel that would be required to implement the FOIA as written and the funds that Congress has actually appropriated for that purpose.”
- Explicitly prohibiting certain types of records from being withheld. Such records should include opinions from the Justice Department’s Office of Legal Counsel that carry the force of law or that govern how agencies interact with members of the public.
- Requiring all documents withheld under FOIA to be balanced against the public interest in disclosing them. FOIA already presumes that all government records are open. However, agencies can still withhold records that may technically fall within an exemption yet would not be harmful if disclosed. A provision explicitly requiring agencies to conduct a public interest balancing test would mean that in close cases, openness should prevail.
- Update FOIA requests, processing, and tracking for the 21st century. Some agencies do not explicitly accept requests via email, which is a glaring example of how outdated FOIA has become. So the Senate bill’s creation of a centralized online portal for all FOIA requests is an important upgrade. However, the bill does not require agencies to adopt new technology to make responding to requests more efficient. Agencies need more financial resources to meet FOIA’s 20-day response deadline, and they should also be required to update and automate their internal processes to speed up response times.
- Restoring public oversight of law enforcement techniques. EFF understands that there are legitimate reasons certain law enforcement records should be secret, but our experience suing for records demonstrates that too often, secrecy unnecessarily prevails. This is particularly true when agencies use FOIA to shield disclosure of controversial investigative techniques that invade people’s privacy and potentially violate the Constitution. One small step toward fixing this problem would be to add a comma to Exemption 7(E).
- Incentivizing greater disclosure with real penalties for non-compliance. Congress should make attorneys fees mandatory whenever a requester has to sue to obtain records, and mandate the punishment or termination of employees who actively thwart transparency.
EFF applauds Senators Leahy, Cornyn, and Charles Grassley for their hard work and commitment to government transparency. But passage of the FOIA Improvement Act should be the beginning—not the end—of Congress’ efforts to ensure that FOIA’s promise of a truly open government is realized.