Earlier this week, the House of Representatives passed the FOIA Oversight and Implementation Act, the bipartisan answer to problems that have plagued those who use the Freedom of Information Act (FOIA) for years. It is now up to the Senate to pass this important legislation and get it to the President’s desk.
The current bill includes some important improvements to the version that passed the House in the last Congress, such as a more robust narrowing of FOIA exemption b(5) than we’ve seen in other legislative language. Agencies have been using the exemption to withhold a broad swath of material that is crucial to understanding what the government has done and why, including final agency interpretations of legal authority, for years. This overuse even prompted civil society organizations to nickname it the “withhold it because you want to” exemption. The bill also introduces a few levels of transparency to FOIA, such as the addition of a requirement that initial agency responses provide contact information of someone at the agency the requester can reach out to for status updates while the request is pending, and a requirement that the agency list the name of each person at the agency responsible for denying any part of responsive documents with the response.
As before, the bill includes a provision to codify the presumption of openness, requiring agencies to release responsive records unless prohibited by statute or unless the release would result in a foreseeable harm. It also tackles some of the procedural inefficiencies of FOIA by requiring agencies to publish frequently requested documents online, and by clarifying when agencies can and cannot charge fees when they miss the deadline to respond to the FOIA request.
Although these are promising steps forward, we were disappointed with one provision. The House bill contains two carve outs inserted at the last minute to appease the Intelligence Community (IC) that clarifies that this bill would not require the IC to disclose classified information. The carve out is unnecessary and duplicative, as this kind of information is already protected under FOIA. This situation is also alarming because it closely tracks the absurd objections from the banking interests that derailed this reform in 2014. A separate carve out would exempt the IC from the improved inter-agency consultation process that the bill would put into place to streamline the exchange of information between agencies on a single FOIA request.
We urge the Senate to reconsider these IC carve outs, and to pass this legislation and deliver it to the President’s desk before we lose another chance at reform.