AAN Doubles Down on FOIA Reform

Last week, the Subcommittee on Government Operations of the House Committee on Oversight and Government Reform held a hearing titled “Ensuring Government Transparency Through FOIA Reform.” It was a bit of an odd hearing in that didn’t explicitly refer to the pending House FOIA Reform Bill, HR 653. Then again, it clearly wasn’t not about the pending House FOIA Reform bill, HR 653.

Three witnesses testified (with a link to each person’s testimony):

Rick Blum, Coordinator of the Sunshine in Government Initiative

Miriam Nisbet, former Director of the Office of Government Information Services (the “FOIA Ombudsman”)

Fred Sadler, a former Director of the FDA’s FOIA office, who has about 40 years of FOIA experience across government

Rick Blum is the Coordinator of the Sunshine in Government Initiative. Since AAN is a member of SGI, Rick’s testimony was technically offered on behalf of FOIA. But, as they say, when you’re committed to FOIA reform, you need to commit to FOIA reform.

It became evident to many who attended the hearing and support HR 653 that we needed to address several points made during the testimony of other witnesses. That’s why AAN joined 9 other organizations in submitting written testimony to be included as part of the hearing’s official record.

The testimony linked above addresses the following issues:

  • The “Foreseeable Harm” Standard: HR 653 says that “an agency may not withhold information [under FOIA] unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is [absolutely] prohibited by law” (the last would apply to things like classified information falling under Exemption 1, a so-called “non-discretionary” exemption). More information would be released to the public, especially when compared to the standard employed by other (mainly Republican) Administrations, which says that information should be withheld whenever there is a “sound legal basis” for doing so. We support this and disagree with claims that it would delay agency responses and prompt increase litigation over FOIA denials because agencies would have to spend so much time identifying and documenting a foreseeable harm. We see that position as particularly ironic, given that former Attorney General Eric Holder issued the edict that put this into place about 6 years ago. All agencies should be operating accordingly by now. Further, fully employing the standard should decrease litigation (as more records are being released).

  • Creation of a “FOIA Portal”: This portal is already being used by several agencies, who took the initiative to start building it themselves. It’s easy to use from a requester perspective and far outstrips the DOJ’s “FOIA.gov”.

  • Proactive Disclosure: Despite claims that that agencies will have trouble complying with the requirement to release any information that has been the subject of three or more requests, we actually think this provision should go further and simply require proactive disclosure of any record that has already been released. Claims that Section 508 of the Rehabilitation Act, which requires that all government documents be ADA compliant, make this requirement unduly burdensome on government are unfounded. The fact is that any record created after 1998 (obviously including all records created going forward) is “508 Compliant”. Further, Google and Adobe Acrobat both offer free and easy to use programs which take existing records and make them 508 compliant.

  • Strengthening proposed changes to Exemption 5: This is the exemption that applies to “deliberative work product”, “attorney work product” and “attorney client privilege” documents. It is one of the most over-invoked exemptions, really difficult to overcome in court and used to restrict access to records people have really wanted of late, like Office of Legal Counsel memos. We had tried to create sunset of 25 years on the application of this exemption and/or specify that the government has to meet a “public interest balancing test” where they show the need for withholding outweighs the requester’s need for the records. We got some very valid pushback from agencies with regard to applying those standards to attorney client privilege documents and attorney work product documents. But we’d still like to make it 100% clear that the government has to release OLC memos.

We continue to hope that AAN members share our support for HR 653 and express that support to their Members of Congress. Please do not hesitate to contact AAN Legal Counsel Kevin M. Goldberg at goldberg@fhhlaw.com or 703-812-0462 if you have any questions.

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