House Passes FOIA Bill; What Will Senate Do?

The House on January 11, 2016, passed a bill (HR 653) to strengthen the Freedom of Information Act (FOIA), a major tool for journalists trying to inform the public about what the federal government is doing.

The question now is what the Senate will do with the legislation and whether it will be amended in ways that make for more or less openness. A similar bill almost became law in 2014, and chances of the current bill being enacted seem good. But the possibility of a last-minute derailment, especially in an election year, remains.

The House bill, fielded with bipartisan cosponsorship, was so uncontroversial that the House passed it by voice vote under suspension of the rules — a procedure that requires a two-thirds majority. But that alone may not be enough. In the previous Congress, a similar bill passed the House on a 410-0 rollcall vote, and yet still failed during the final hours of the session.

There are many things in the House bill that would improve FOIA as a tool for openness. Major features include the following:

• Requires agencies to make available the information they disclose in an electronic, publicly accessible format.
• Requires agencies to publish proactively online records that have been requested three or more times.
• Requires the Office of Management and Budget to establish a single online portal for FOIA requests to any agency.
• Codifies a "presumption of openness," even for exempted information, unless disclosure would cause specific harm or is prohibited by law.
• Limits the "deliberative process" exemption (which allows agencies to withhold some records on their internal discussions over a decision before it is made final) in various ways.
• Limits the "law enforcement" exemption by defining it more narrowly.
• Expands duties of the Office of Government Information Services (OGIS, sometimes called the "FOIA ombud") to include mediation services between requesters and agencies, as well as annual reports and annual public meetings.
• Prohibits agencies from charging search or duplication fees if they miss statutory response deadlines or fail to justify fees in writing.
• Requires the Chief FOIA Officer at each agency to complete an annual review of the agency's compliance with FOIA on matters such as agency regulations, fee assessments, use of exemptions, dispute resolution services, and the timely processing of FOIA requests.
• Establishes a Chief FOIA Officers Council to develop recommendations for improving FOIA performance.
• Requires the Inspector General of each agency to periodically review the agency's FOIA compliance.

While most journalism and open government groups support most provisions in the bill, many found problems with a last-minute "carve-out" for intelligence inserted at the behest of the House Permanent Select Committee on Intelligence. The existing FOIA law already includes an exemption for classified records. A key open-government coalition, OpenTheGovernment.org, feared a broad exemption in the new bill for any material the intelligence agencies think might compromise "sources and methods" would actually exempt many otherwise disclosable intelligence records from openness provisions of the bill. One of those provisions aimed to streamline the interagency consultation process when multiple agencies were involved in a FOIA request. The carve-out exempted intelligence agencies from this.

OpenTheGovernment.org told House Speaker Paul D. Ryan in a January 15 letter that "exempting the Intelligence Community agencies, which most need the reforms, from the consultation process weakens the reform intended by the Committee."

The bill was jointly sponsored by Darrel E. Issa (R-CA) and Elijah E. Cummings (D-MD), and is styled the "FOIA Act" (“FOIA Oversight and Implementation Act of 2016”).

While the tone of the House floor debate remained nonpartisan, it seemed an effort. Only hours before the bill came up on the floor, the House Committee on Oversight and Government Reform released a staff report entitled "FOIA Is Broken." The report was based partly on hearings the panel held June 2-3, 2015. Both the hearings and the report slammed the Obama administration, implying that FOIA failures were all its fault. While the criticisms may be justified, FOIA veterans remember the poor record of the previous president, Republican George W. Bush. Under Bush, the so-called "Ashcroft memo" declared a federal presumption of non-disclosure — antithetical to the spirit of the House-passed bill.

The Senate Judiciary Committee already signalled its readiness to act on February 5, 2015, by approving its own bill (S 337), which resembles the House bill and the one passed by the Senate in the previous Congress. The critical steps ahead will be Senate passage and reconciliation with the House-passed bill in a politically tumultuous election year.

• "House Votes To Strengthen Government Records Law," Associated Press, January 11, 2016, by Matthew Daly.
• "Open Government Groups Express Support FOIA Reform, and Concern Over Carve-Outs for the Intelligence Community," OpenTheGovernment.org, January 15, 2016.
• "House Passes Sweeping FOIA Reform Legislation," The Hill, January 11, 2016, by Megan R. Wilson and Cristina Marcos.
• "House Passes FOIA Reform, Again," Politico, January 12, 2016, by Josh Gerstein.
• "Here's How the Senate Should Fix the FOIA Reform Bill," Electronic Frontier Foundation, January 15, 2016, by Aaron Mackey.
• "4 Things To Know About the New FOIA Reform Bill," Sunlight Foundation, January 12, 2016, by Drew Doggett.
• "FOIA Is Broken: A Report," Committee on Oversight and Government Reform staff, January 2016.
• Previous Story: WatchDog of December 17, 2014.