Bad Watchdog Season 2 launches June 20.


Last Minute Frenzy Around FOIA and Its Disappointing End

When the House adjourned last week, they took home with them the hope of Freedom of Information Act (FOIA) reform passing this year.

After a difficult fight for passage in the Senate—bolstered by hundreds of tweets, calls, and Facebook posts from those in the open government community struggling to convince departing Senator Jay Rockefeller (D-WV) to lift his last minute hold on the FOIA Improvement Act of 2014 (S. 2520)—everything seemed on track for the bill to pass the House of Representatives. Earlier this year, the House unanimously passed very similar legislation, so those who follow FOIA reform were shocked when the House failed to vote on the legislation. To add insult to injury, the media remained largely mute through Senator Rockefeller’s hold and as the public fought to pressure Speaker John Boehner (R-OH) to schedule a vote on the bill.

The widely supported, bipartisan bill, introduced by Senator Patrick Leahy (D-VT), would have updated FOIA in very meaningful ways. Indeed, reform could not have come at a better time; last year was the most secretive since President Obama took office. Instead, lobbyists for the Financial Services Industry succeeded in keeping the bill off the House Floor, guaranteeing that a vote would not occur before Congress adjourned for the year. The last minute lobbying was mostly against the "presumption of openness" provision that was originally introduced as agency guidance in 2009, and that S. 2520 attempted to codify. Yes, the big issue was with a provision that agencies are already supposed to be implementing, at the direction of the President. To codify this presumption, S. 2520 would require agencies to apply the foreseeable harm standard before using discretionary exemptions; they would have to release the information unless it would cause a foreseeable harm. That standard was first contained in a 2009 directive and would not apply to the type of information that the Financial Services Industry was concerned about having to disclose. Despite his claims of championing accountability, Speaker Boehner allowed the bill to sit on his desk without a vote.

While this important reform was stonewalled at the last minute by banking interests, the mainstream media was largely silent, and members of the public had to rely on open government organizations, bloggers, and Twitter to learn about the crisis. Considering that FOIA is such an important tool for journalists, it is puzzling that so few reported on the issue when Senator Rockefeller held the bill up for days before releasing his hold. Those days proved to be critical, leaving little time for the open government community to respond once it became clear that the banking industry was working to kill the bill. Mainstream media’s silence was only partially broken towards the end of the House session and they started reporting only after the bill died.

The disappointment is still palpable as we come to terms with the fact that FOIA reform will not happen this year, despite the recent momentum. However, we now have a chance to start again and push for even stronger reforms, although it will likely prove an uphill battle given the enormous pushback from the powerful special interests.