Can Congress Force the Federal Government Be Less Secretive?
A bill to improve public-records access is advancing, but the endgame is murky and some provisions are rankling open-government advocates.
The House easily passed a bipartisan bill Monday that pushes the federal government to improve its cooperation with public-records requests, but the White House hasn’t signed off on the measure.
And language added to the legislation at the request of the House Permanent Select Committee on Intelligence is giving heartburn to open-government advocates who nonetheless support the overall bill.
The bill is aimed at paring back what critics call excessive use of exemptions that enable agencies to withhold documents from public view, and speeding up responses to requests that sometimes drag on for years.
Some major provisions of the House bill, which passed by voice vote and now heads to the Senate, include: codifying the “presumption of openness” in response to Freedom of Information Act requests; scaling back agencies’ powers to claim certain documents are privileged and hence can be withheld; enabling more review of agencies’ FOIA compliance by inspectors general; and bolstering the role of the Office of Government Information Services, a federal office that reviews FOIA practices.
“The reforms contained in the bill will significantly improve the American public’s ability to exercise their right to access information under the Freedom of Information Act,” said Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee. He worked on the bill, which is sponsored by ranking member Elijah Cummings and former Chairman Darrell Issa.
A similar bill cleared the Senate Judiciary Committee a year ago. “It’s a good piece of legislation, and hopefully a strong vote in the House will give it some momentum over here,” Senate Majority Whip John Cornyn, a cosponsor, told reporters in the Capitol on Monday. “Hopefully it won’t be very controversial. It shouldn’t be.”
Earlier versions of bills to boost implementation of FOIA passed the House and Senate in 2014 but were never reconciled.
Controversy over lack of access to Hillary Clinton’s emails and high-profile Househearings have put new focus on federal implementation of the bedrock open-government statute.
Still, it’s not clear whether there’s a political opening to get the bill enacted into law. The White House has been noncommittal on the measure. Press secretary Josh Earnest said that Congress, which isn’t covered under FOIA, should add language ending Capitol Hill’s exemption from public-records requests.
“I would expect that the press corps that spends so much time covering Congress and covering government and demanding transparency would have those same kinds of questions for Congress,” Earnest said Monday. “Congress is the one writing the rules. And right now they’re writing the rules in such a way that they don’t have to play by them. I don’t think that’s particularly a, frankly, American way to pursue this.”
White House aides said Monday that the administration has already made important strides in improving response to FOIA requests even as their volume has mushroomed, but did not rule out supporting the legislation.
“For the sixth year in a row, more than 90 percent of the FOIA requests processed by the administration resulted in the requester receiving some or all of the requested information. That being said, there’s always more that can be done to improve the process and we are open to working with Congress on additional improvements,” said White House spokeswoman Brandi Hoffine.
And new language in the House bill aimed at protecting intelligence-related information from disclosure is adding a fresh wrinkle.
One section would prevent changes to the FOIA exemption process from applying to information that would “adversely affect intelligence sources and methods.”
In addition, a new section of the bill seeks to prevent FOIA requests from getting held up for extended periods of time when separate agencies must consult with each other on documents. Requests going into limbo amid lengthy consultations between agencies have been a long-standing cause of FOIA delays.
But those provisions to improve the consultation process “shall not apply when the consulted entity is an element of the intelligence community,” the bill states.
Nate Jones, a FOIA expert with the National Security Archive at George Washington University, said the most recent changes have generally made the legislation better, but also said that provisions shielding intelligence agencies from reforms to the consultation process are troubling.
“It renders moot what would have been a pretty good fix. … The vast majority of consultation delays are caused by the intelligence community,” said Jones. “It just doesn’t make any sense.”
But he’s hoping that the overall bill will advance. “Now we will look toward the Senate in hopes that they will keep the good things and get rid of the bad things,” Jones said.
Jack Langer, a spokesman for House Intelligence Committee Chairman Devin Nunes, said the intelligence provisions were added at the request of the committee in order to “make sure the bill doesn’t cause problems for the intelligence community when it responds to FOIA requests.”
Those provisions, however, also drew criticism from the group OpenTheGovernment.org. “The efforts to exempt the Intelligence Community are not acceptable. They are particularly offensive in this bill intended to promote openness across the federal government,” said Patrice McDermott, the group’s executive director, in a statement Monday.
The bipartisan push to improve FOIA actually led to some partisan sniping Monday. Chaffetz released a report on problems with FOIA that slams the Obama administration’s performance in complying with the law. It says that the administration is “unaware that FOIA is systematically broken,” among other criticisms.
Cummings called it an “erroneous, incomplete, and highly partisan staff report” that was never vetted by the committee, and he said it would not help the bipartisan FOIA reform effort.
“President Obama reversed the Bush administration’s presumption of secrecy, and federal agencies are now responding to more FOIA requests than ever before. Unfortunately, Republicans in Congress starved agencies of resources as FOIA requests increased to record levels, and then they act surprised that there are backlogs,” Cummings said.