Real Reform? Open Government Legislation Moving in the House

Something strange happened last week—Congress did something good on accountability. On Wednesday, 13 bills that cover issues from security to freedom of information passed out of the House Oversight and Government Reform Committee with extraordinary bipartisanship.

The Project On Government Oversight was particularly pleased to see improvements to two of our landmark “sunshine laws” advanced: the FOIA Oversight and Implementation Act of 2013 (H.R. 1211) and the Federal Advisory Committee Act Amendments of 2013 (H.R. 1104). Though these are modest reforms, they will provide more accountability and access to information for the American people.

The FOIA Oversight and Implementation Act, introduced by Chairman Darrell Issa (R-Calif.) and Ranking Member Elijah Cummings (D-Md.), takes some common sense next steps towards fixing the problem-plagued, slow-moving government responses to Freedom of Information Act requests. Chairman Issa noted that the bill will require agencies to demonstrate a foreseeable harm to one of the interests protected by an exemption in order to withhold information. This is the current policy of the Obama Administration, but it hasn’t been every President’s policy. As Ranking Member Cummings noted in his remarks, President George W. Bush ended this standard, which was begun by President Clinton. The legislation sponsored by the Chairman and Ranking Member will make sure this standard isn’t changeable.

Other steps toward transparency in the bill include a pilot program to give a boost to FOIAOnline, the public portal for making requests to multiple agencies, and encouragement of proactive disclosure of information on agency websites. Agencies will be required to post online in a publicly accessible and fully usable format any releasable information that was requested at least three times. In a demonstration of bipartisan support, the Chairman echoed the Ranking Member in acknowledging that we can and should do better on FOIA.

On March 13, during Sunshine Week, POGO Public Policy Director Angela Canterbury testified before the Committee on openness in government (and the lack thereof). Her testimony highlighted the need to address the overuse and abuse of FOIA exemptions, expand FOIAOnline to include more agencies, and encourage more proactive disclosures of information, among other recommendations.

In the hearing, Representative Mark Meadows (R-N.C.) raised concerns about agencies consistently flouting the 20-day deadline to respond to requesters. After the hearing, he joined Representative Tammy Duckworth (D-Ill.) as a cosponsor on her amendment to H.R. 1211 to require any agency assessing fees after the deadline to explain to the requester in writing why they believe they are not in violation of the financial penalty provision, which prohibits agencies from assessing fees outside of the 20-day window. Responsible for responding to most FOIA requests within 20 days of their receipt, agencies that lag in response time often assess fees despite penalties that prohibit search charges (and duplication fees for non-commercial requesters) beyond the deadline, as laid out in the OPEN Act’s 2007 amendments.

The rate of agency responses to FOIA requests is alarmingly slow, and was a major topic of discussion when the bills were marked up. In speaking about extensions, which should be reserved for unusual or exceptional circumstances, and how the extensions are abused, Representative Duckworth urged, “If we’re serious about government transparency, this type of foot-dragging should not be allowed to continue.” Representative Meadows also spoke, referencing Ms. Canterbury’s testimony, saying she had mentioned that, “out of a hundred [FOIA] requests sent by that organization [POGO] in February, only eight—eight out of a hundred—met that deadline.” Representative Meadows emphasized that this rate is unacceptable. POGO is pleased that Representatives Duckworth and Meadows took our recommendations and offered a bipartisan proposal to address FOIA delays.

Other amendments to the FOIA bill include an amendment authored by Representatives Michael Turner (R-Ohio) and Jason Chaffetz (R-Utah) that would expand FOIA to cover government-like entities or entities funded by the government, particularly financial entities such as Freddie Mac and Fannie Mae. The amendment was withdrawn, but Chairman Issa voiced his support for further work on the issue. Representative Turner also introduced an amendment that would require the Government Accountability Office to issue a report on agency treatment of FOIA requests pertaining to entities receiving federal bailouts. This amendment passed. Representative John Mica (R-Fla.) offered an amendment to require each agency’s Office of Inspector General to review FOIA compliance. This amendment also passed.

Though the current draft of the FOIA Oversight and Implementation Act reflects some of POGO’s recommendations for a more efficient FOIA process, there is still much to be done to improve the law and its enforcement. For example, we would like to see the overuse and abuse of certain exemptions addressed in the law. However, it is understood that at this time, the Committee wants to quickly advance modest reforms with broad support. Perhaps the Senate will consider additional, substantive reforms to the law moving forward.

Meanwhile, there are some easy improvements to H.R. 1211 and the Duckworth-Meadows Amendment that we hope Chairman Issa and Ranking Member Cummings will consider. For example, the language for the foreseeable harm standard, proactive disclosures, and deadlines for appeals could easily be made more clear. We also recommend additional reporting on litigation by the Department of Justice and further strengthening of the role of the Office of Government Information Services (OGIS), which acts as FOIA ombudsperson. The legislation simply moved too quickly (a rarity for government reform bills!) to allow for this kind of fine-tuning by the community of FOIA experts prior to markup. Ranking Member Cummings indicated that he also wanted to make some improvements, so we hope there will be an opportunity to address these issues before the bill moves to the Floor of the House for a vote.

POGO also supports several other bills that passed the Committee last week. The Federal Advisory Committee Act Amendments of 2013 (H.R. 1104), or FACA Amendments, intend to make agencies more transparent in the selection of their committee members. Under this legislation, agencies would be required to disclose how committee members were chosen and to account for any outside interests being represented by those members. The FACA Amendments seek to reduce conflicts of interest in the selection of these committee members by allowing for public nominations of members and subjecting all nominations to the scrutiny of the ethics officer at the relevant agency. Representative Lacy Clay (D-Mo.), the bill’s sponsor, hopes it will open federal advisory committees by providing for greater transparency and ensuring they are free from political pressure.

The Presidential and Federal Records Act Amendments of 2013 (H.R. 1233), introduced by Ranking Member Cummings, seek to modernize federal archival infrastructure to reflect the widespread use of electronic communication in the government. Making presidential and federal archives more thorough and more available is a priority for POGO. There is also a provision requiring that records of any private Internet accounts used for government correspondence be archived, but it remains to be seen what the National Archives’ position is on this proposal.

POGO also supports the Government Accountability Office Improvement Act (H.R. 1162), introduced by Chairman Issa. The GAO Improvement Act echoes a bill authored by Senator Claire McCaskill (D-Mo.) in the 112th Congress that strengthens the GAO through the expansion of the Comptroller General’s oversight authorities and access to information. Ranking Member Cummings referred to the GAO as a force multiplier in carrying out the investigative functions of the legislative branch. Another good bill is the Presidential Library Donation Reform Act of 2013 (H.R. 1133), which bill sponsor Representative John Duncan (R-Tenn.) called “the most bipartisan bill this Committee could ever take up.” This legislation would bring transparency to donations for presidential libraries. Like the Presidential and Federal Records Act Amendments, this bill has languished in previous Congresses—not because it is controversial, but because getting congressional support for moving government reform bills has been difficult in the past. Perhaps that is changing, given the apparent interest on the part of this Committee’s leadership and members in more open and accountable government.

One of the overwhelming themes in this markup was the bipartisanship with which these pieces of legislation were developed and passed. POGO is heartened to see the Committee moving on so many sensible open government reforms with cooperation across the aisle. We will continue to work with these good government champions to strengthen the reforms where needed and support these bills becoming law.