Push to Reform the Freedom of Information Act Collapses in House

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The Capitol dome is seen on Capitol Hill in Washington, Dec. 11, 2012. (AP Photo/J. Scott Applewhite)

December 12, 2014

A bill to reform the Freedom of Information Act, a key pillar of federal open government laws, was defeated this week after the House of Representatives failed to hold a vote on the plan before adjourning for the year.

The death of the FOIA Improvement Act marked a stinging defeat for government transparency advocates, and came despite broad bipartisan support in Congress. The bill won unanimous approval in the Senate on Monday, and in February, a nearly identical version of the measure cleared the House by a 410-0 vote.

But despite widespread support for the measure in both chambers of Congress, Speaker of the House John Boehner (R-Ohio) tabled the bill on Thursday, leaving the future of the two-year reform effort in doubt.

“And Boehner kills #FOIA improvements,” tweeted Sen. Patrick Leahy (D-Vt.), one of the Senate co-sponsors of the bill.

The Freedom of Information Act, passed in 1966, was intended to allow the public prompt access to government documents. The law requires federal agencies to respond to information requests within 20 days, and to state their reasons for denying a request or redacting information. The law was intended to allow agencies to withhold disclosures that would harm national defense.

The law hasn’t always worked as planned, though, leaving government agencies with backlogs that in some instances date back decades.

President Obama, in an attempt to address the problem, issued an order to federal agencies on his first day in office in 2009. Agencies were to adopt a “presumption in favor of disclosure,” proactively releasing documents rather than making them secret. In other words, agencies were to comply with FOIA requests.

But the order didn’t stick.

According to a March 2014 audit by the National Security Archive, a non-governmental research institute and heavy user of the Freedom of Information Act, half of all federal agencies, including all agencies responsible for defense and counterterrorism, had failed to adapt their policies to fit the president’s order.

The FOIA Improvement Act, co-sponsored by Leahy and Sen. John Cornyn (R-Texas), was designed to turn that largely unheeded order into law.

A keystone of the bill was a provision limiting the use of the so-called B(5) exemption, which allows agencies to withhold internal communications, as well as communications that are sent between agencies during deliberations over policy. The legislation would limit that exemption to documents that are less than 25 years old.

Open government advocates argue that this exemption could be applied to nearly any government document, and note that the use of the exemption has skyrocketed recently. It was used to deny more than 80,000 requests for information in 2013, or 12 percent of FOIA requests that year, the highest number of denials recorded during the Obama administration, according to an Associated Press investigation.

Now the proposed reforms will have to wait until the next session of Congress, when it’s unclear if lawmakers will take up them up again. As Boehner said on Thursday before closing this year’s House session, “I have no knowledge of what the plan is for that bill.”


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