Will Spring Bring More Sunlight? Freedom of Information on Congressional Agenda

March 25, 2016 | 6:34 am
Celia Wexler
Former contributor

There’s so much bad news about partisan gridlock on Capitol Hill, it’s refreshing to have some good news to report.

When it comes to improving the Freedom of Information Act (FOIA), fifty years old this year, Republicans and Democrats are working together to achieve reform.  Indeed, both the House and the Senate have passed bills that would significantly strengthen FOIA.  The bills had overwhelming bipartisan acceptance. No Senator objected to the FOIA Improvement Act of 2016, S. 337. The House FOIA Oversight and Implementation Act, H.R. 653, bill passed by voice vote.

The original FOIA law was signed into law on July 4, 1966.  Its passage was based on a simple idea: that the public has a right to know how its government operates.

Its champion was Rep. John Moss, a California Democrat who joined Congress when a Republican president, Dwight Eisenhower, and a Republican Congress, held power, and weren’t interested in the reform ideas of a minority member.  But even when party control switched, Moss did not find much support for his ideas about transparency.  It took him 12 years go achieve his goal.

Most federal agencies resisted FOIA.  President Lyndon Baines Johnson also was leery.  But Moss found an ally in then-Republican Representative Donald Rumsfeld.  Moss held hearings that exposed secrecy scandals, and journalists pushed for the reform.

FOIA gave the public access to a wide variety of government documents, but did not surrender the keys to the governmental cabinet.  It exempted information that could compromise national security, private personnel information, proprietary information, and the exchanges on policy that agencies shared with one another.

In both the House and the Senate, there has been strongly bipartisan support for these current measures.  Both bills would put into law the approach to transparency of government information that President Obama signaled on his first day in office.

The President stated that federal agencies should, whenever possible, provide access to government information to the public. Agencies should adopt a “presumption of disclosure,” the President wrote. “In the face of doubt, openness prevails.”

Even with the President stating a very clear preference for transparency, many federal agencies continue to have spotty records when it comes to FOIA.  It still takes too long to gain access to federal documents, and often records that should be made available are kept secret or heavily redacted. Indeed, according to recent media accounts , the Obama Department of Justice had lobbied against these FOIA reform bills, efforts that it took a FOIA request to uncover.

If an Administration that began its life with the stated goal of openness has trouble delivering, think how FOIA suffers when an administration is committed to secrecy.  That’s why it is crucial that FOIA be strengthened this year.  The House and Senate bills both would place the “presumption of openness” of the Obama memo into law, where it would not be subject to the whims of future presidents.

The bills also would encourage the proactive disclosure of documents that are requested, and would require the creation of one single web portal for FOIA requests.

Under current FOIA law, documents that involve deliberations among agencies are exempted from disclosure.  Both bills bill would lift that exemption after 25 years.  This means that historians trying to understand the development of crucial policies will have access to valuable documents that would otherwise have been denied them.

The bills also make clear that the timely response to FOIA requests should be among agency priorities.  And it strengthens the authority of the Office of Government Information Services (OGIS) and its valuable role in mediating disputes between a FOIA requester and an agency.  (However, some openness advocates raised serious concerns about a last-minute addition to the House bill that would protect the disclosure of any information thought to “adversely affect intelligence sources and methods,” no matter how old that information may be.)

FOIA always will be a work in progress.  The urge to keep things secret infects the culture of every government.  But with the passage of two viable FOIA reform bills this year, the hope is that Congress will not squander this opportunity and ensure that the House and Senate soon agree on one FOIA reform bill that makes it to the president’s desk.