Lawmakers will scramble over each other to laud transparency and open government when considering legislation to strengthen the Freedom of Information Act.
But FOIA reform often faces a difficult path toward passage as speculation mounts over its unintended consequences, sometimes stalling action on the bill by Congress. Who launches this quiet resistance against changing the nation’s foremost public records law?
Federal agencies, that’s who.
Rep. Elijah Cummings (D-Md.), one of the sponsors of a FOIA reform bill introduced this Congress, told E&E Daily that bolstering the public records law can raise bureaucratic eyebrows.
"I think a number of the agencies are probably concerned. This is the impression that I get: They think that you shouldn’t have this presumption that things should be revealed. In other words, there should be more of a screening process," Cummings said. "It’s hard for them to just come outright and say, ‘No, we don’t like that, we’re not going to do it.’ But I get that impression that they don’t feel that people need to have access to every record."
Asked whether he or other lawmakers have heard from agencies regarding his bill, Cummings said their concerns about FOIA are more subtly made to Congress.
"In general, in general. But I don’t think it’s a big push, but that’s just the impression I get," said the ranking member on the House Oversight and Government Reform Committee.
Worries from the agencies are whispered into lawmakers’ ears and then burrow into their official statements, raising alarm about FOIA’s increased burdens if Congress tinkers with it yet again.
That has already begun to happen with S. 337, the "FOIA Improvement Act." In the report released by the Senate Judiciary Committee last week on the bill, Sen. Jeff Sessions (R-Ala.) said the Department of Justice and assistant U.S. attorneys told him that a specific provision of the legislation could trigger new litigation.
"I am informed by both the Department of Justice and the National Association of Assistant United States Attorneys that the 25-year sunset provision on Exemption 5 could invite defendants and their lawyers to use FOIA as an alternative discovery tool in attempts to re-open closed cases," Sessions said in a section tucked in at the end of the report and titled "Additional views from Senator Sessions."
Sessions, a former U.S. attorney, also said that "by subjecting such documents to potential disclosure, this legislation could chill government lawyers from offering candid advice and invite criminal defendants and their attorneys to re-open and re-litigate long-resolved cases."
Earlier in the Senate report — which was filed by Sen. Charles Grassley (R-Iowa), the Judiciary panel’s chairman — it’s noted that the sunset provision strikes "the proper balance" between FOIA’s goal of transparency and "avoiding unintended consequences that might chill internal decision-making between government employees."
Sessions’ attention is focused on a provision in the bill that restricts agency use of FOIA’s Exemption 5, which blocks disclosure of records dealing with internal deliberations, to documents created less than 25 years ago. That provision would have weakened Exemption 5 even further, but its tougher language was stripped from the bill last Congress in order to gain support from lawmakers (E&E Daily, Nov. 21, 2014).
The bill passed the Senate last year.
It had to overcome a hold from then-Sen. Jay Rockefeller (D-W.Va.) — who, like Sessions, had heard from agencies. Rockefeller, since retired from Capitol Hill, said that "experts across the federal government" had warned that provisions in the bill would hamper federal attorneys’ work and obstruct their investigations (E&E Daily, Dec. 9, 2014).
The legislation ended up never being considered in the House. Cummings, along with Rep. Darrell Issa (R-Calif.), saw their FOIA bill pass the House last year but move no further.
"We don’t have agencies making a lot of public noise," said Sean Vitka, federal policy manager for the Sunlight Foundation, which backs strengthening FOIA. "This is frustrating because it showed up at the eleventh hour last year."
Justice has pushed back before when FOIA reforms were considered on Capitol Hill. In a 12-page letter sent in March 2007 to Sen. Patrick Leahy (D-Vt.), DOJ laid out a litany of complaints against his proposed amendments to FOIA.
A version of Leahy’s bill later passed Congress easily and became law.
"The only concerns I have heard are from the agencies," said Rick Blum, director of the Sunshine in Government Initiative. Blum’s coalition of journalism organizations has pushed for FOIA reforms.
"We are seeing that same dynamic again," Blum said. "We can expect that we will hear from agencies on any changes that are made."
‘Offensively unapologetic’ when it comes to FOIA
The federal government has not won plaudits for its handling of public records lately.
Likely 2016 presidential contender Hillary Clinton as secretary of State used a personal email account, leading to allegations that have also been levied at officials from U.S. EPA, the Chemical Safety Board and the IRS that they may have evaded federal records law (Greenwire, March 3).
EPA especially has come under scrutiny for its lackluster FOIA performance. In an opinion issued earlier this week, District Judge Royce Lamberth said the agency was "offensively unapologetic" in its handling of a conservative group’s FOIA request (E&ENews PM, March 2).
It’s not just the Department of Justice that has had issues with changing public records law. At a hearing last week, Cummings noted that along with DOJ, the Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau and the Federal Trade Commission had all expressed concerns last year about FOIA reform (Greenwire, Feb. 27).
Vitka said his group wants agencies to bring their concerns about FOIA reform into the light.
"We are hoping to have a public conversation with them about the bill. We’re not afraid of being wrong, and if there are ways of making the bill better, that’s something we want to pursue," Vitka said. "Come on out. We’re happy to have these conversations out in the open."