AAN Fighting for FOIA

AAN was one of fifty organizations who sent a letter to President Obama asking for his commitment to certain basic principles regarding the Freedom of Information Act. This is part of our overall effort, more than a year in the making, to achieve enactment of S 2520, the FOIA Improvement Act of 2014. In fact, the six key issues identified in the letter would also be addressed by the FOIA Improvement Act. The letter asks President Obama to:

  • Codify the “presumption of openness” underlying FOIA which seems to ebb and flow in strength during each Presidential administration;

  • Codify the “foreseeable harm” standard instituted in a March 2009 memorandum by Attorney General Eric Holder which says that information should be disclosed, even where a FOIA exemption technically applies, unless foreseeable harm will result from disclosure;

  • Create a “public interest balancing test” to be applied when an agency seeks to withhold documents under Exemption 5, which applies to documents memorializing the “deliberative process,” documents constituting attorney work product and documents that would be subject to the attorney client privilege; most notable among these are the Office of Legal Counsel memos relating to authorization of drone strikes on known US citizens overseas and to authorization of torture of detainees (considered attorney work product);

  • Create a sunset to be applied to Exemption 5 withholdings, which has become an ever-increasing problem FOIA requesters seek older documents of historical interest; one interesting example are documents explaining the discussion leading up to the Bay of Pigs Invasion in 1962, which are more than 50 years old but, until recently, continued to be withheld because they are “deliberative process” documents;

  • Strengthen changes first instituted in 2007 (the last time FOIA was amended) which prevent agencies from charging processing fees if they exceed the statutorily mandated 20 day deadline for response to a FOIA request (which regularly happens). The DOJ has been advising agencies that they do not have to grant this “fee waiver” upon missing a deadline if the agency as a whole has reduced its overall processing backlog. I have no idea where this position comes from or its grounding in law; and

  • Expand and strengthen the Office of Government Information Services (OGIS), which is sometimes referred to as the “FOIA Ombudsman.”

We hope that President Obama’s support on these key issues can push S 2520 through the Senate Judiciary Committee when the Senate returns to work after the upcoming elections. Of course, you can help as well by asking your Senator, especially if he or she is on the Judiciary Committee, to support the bill and ask Senate leadership to schedule a floor vote.

Please feel free to contact AAN Legal Counsel Kevin M. Goldberg at goldberg[at]fhhlaw.com or 703-812-0462 if you have any questions about this issue or other legal issues.