AAN Endorses “New” FOIA Reform Legislation

While defeating the SAVE Act is still our top legislative priority, AAN is also actively following and engaging on other important bills that have been introduced in Congress. We recently joined several media and open government organizations who have endorsed recently introduced bills designed to improve the federal Freedom of Information Act.

We were extremely disappointed when S 2520, the FOIA Improvements Act, passed the Senate last December but failed to make it through the House – even as that body had unanimously passed its own FOIA bill (HR 1211) earlier that year.That’s why we’re happy to see both the House and Senate get a quick start on the issue this year by introducing bipartisan legislation on Monday, February 2. The Senate, in fact, has already taken action, with its bill passing the Senate Judiciary Committee on February 5.

House Bill H.R. 653 was introduced by Representatives Darrell Issa (R-CA), Elijah Cummings (D-MD) and Mike Quigley (D-IL) while S.337 was introduced by Senators John Cornyn (R-TX), Charles Grassley (R-IA) and Patrick Leahy (D-VT). While they differ slightly from each other, both are very similar to last year’s bill that was so close to becoming law. That’s why we hope that both the House and Senate can move quickly to pass one version or the other – or pass both and resolve differences via conference committee.

The key changes made by both bills should greatly improve your FOIA experience. Both beef up the “presumption of openness” inherent in FOIA by codifying the “foreseeable harm” standard that President Obama and Attorney General Eric Holder ordered Executive Branch agencies to apply when processing FOIA requests; that standard tells agencies to engage in “discretionary disclosure” whenever practicable, with withholding to occur only where there would be a “foreseeable harm” resulting from the disclosure.

The bill will strengthen the Office of Government Information Services” (often referred to as the FOIA Ombudsman) which, in turn, gives you a stronger advocate pushing back against recalcitrant agencies. It will also create a centralized “FOIA Portal” to make requesting and receiving records easier. Finally, each contains one substantive change affecting Exemption (b)(5), an exemption allowing government agencies to withhold “nonfinal” documents such as attorney work product or deliberative discussions that led to a final decision. Government agencies are increasingly invoking this exemption, even as many of these documents are years – even decades – old and would not harm the government’s interests in any way.

What can you do? It’s simple really. Contact your Representative and tell him or her that you support HR 653 and he or she should too. Ask him or her to press leadership for a vote on HR 653 as soon as possible after the bill passed the House Committee on Oversight and Government Reform and ask him or her to vote “YES” when the vote occurs. Ask your Senator to do the same now that S 337 has passed the Senate Judiciary Committee. Feel free to write about the bills as well – explain to your readers why these bills – which seem relevant only to reporters or policy wonks – affect them every day. Starved for examples, take a look at the Sunshine in Government Initiative’s “FOIA Files” database which catalogs important stories over the past decade that relied on FOIA to tell stories affecting local health and safety issues.

And, of course, you can always contact me at 703-812-0462 or goldberg@fhhlaw.com.