Senate Passes FOIA Improvement Bill

March 30, 2016

The Senate March 15, 2016, unanimously passed a bill (S 337) improving the 50-year-old Freedom of Information Act (FOIA). But the appearance of bipartisan consensus may belie a rocky road to final enactment in a highly politicized election year.

The House passed a similar bill (HR 653) January 11, 2016. A House-Senate conference will probably be required to reconcile the few differences between the versions.

The two bills have a lot in common. Both would codify the "presumption of openness" which has varied as an executive policy from administration to administration. Both require agencies to make available the information they disclose in an electronic, publicly accessible format. Both require agencies to publish proactively online records that have been requested three or more times. They share other provisions as well.

But the differences between the two bills are important. For example, both would waive most fees levied on FOIA requesters if agencies fail to meet the statutory response deadlines. Delayed response is a major complaint of FOIA users. But the two chambers differ on exceptions to this provision. The Senate bill allows fees if exceptional circumstances apply or more than 5,000 pages are involved. The House bill puts that threshold at 3,000 pages.

Another difference between bills is how they would narrow the "deliberative process" privilege which is part of FOIA's Exemption 5 (covering various privileges exempting records from FOIA disclosure). The deliberative privilege is meant to promote frank discussion inside the agency before decisions are made — but open-government advocates say it is overused to protect too broad a swath of internal communications.

The House bill would sunset Exemption 5 secrecy for "deliberative process" after 25 years. The Senate bill would sunset it after the same time period, but would also sunset records protected by attorney-client privilege.

One of the most contentious differences is likely to be the House bill's so-called "national security carve-out." The Senate bill entirely lacks this provision, but it was needed to overcome objections from the House Intelligence Committee that kept the bill from coming to the floor. Critics say this exemption goes beyond the national security exemption that is already part of current law. They fear it will suppress consultation between intelligence agencies and other parts of government — hurting the government's ability to connect the dots when assessing threats. The carve-out also exempts intelligence agencies from requirements that agencies list documents they are withholding.

Even if the two chambers agree on a compromise bill, a big unknown is the Obama administration's position. During the previous Congress, objections from the Justice Department were key in keeping the House from bringing up a FOIA bill and clearing it in December 2014, during the final days before adjournment. The administration's objections were entirely secret at the time. Only a drawn-out FOIA battle waged by Trevor Timm of the Freedom of the Press Foundation brought them to light in March 2016.

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