FOIA reform bill – opposed by the Justice Department – passes Senate

By Danielle Kerem

On Tuesday, the Senate unanimously approved the FOIA Improvement Act, legislation that seeks to strengthen the open records law by limiting exemptions, digitizing documents, and expanding public access. In particular, the proposed statute would require that agencies prove specific, identifiable harm when justifying refusal to disclose documents.

The Senate voted in favor of the bill despite strong opposition from the Department of Justice. In a secret six-page memorandum released earlier this month, the Administration denounced the bill’s efforts to codify a foreseeable-harm standard, contending that attempts to legislate greater transparency and accountability would impose a “crushing burden on agencies” and irreparably damage “proper administration of FOIA.”

The Justice Department additionally lamented the ‘chilling effect’ that increased public scrutiny and agency answerability would have on government activity, writing:

By removing agency discretion to determine when a document covered by an exemption should be released, it would create massive uncertainty and would chill intragovernmental communication.

To be fair, the First Amendment does indeed recognize legitimate limitations to the public’s right to access governmental records. However, given the extensive evidence of agency abuse of FOIA exemptions, the Justice Department’s claim that the introduction of measures to restrict discretionary power constitutes a burdensome intrusion on governmental processes lacks credibility.

In 2011, New York’s Southern District Court rejected efforts by the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE),  Federal Bureau of Investigation (FBI), and the Executive Office of Immigration Review (EOIR) to withhold documents that would reveal that the agencies “went out of their way to mislead the public” about a controversial immigration enforcement system. Judge Shira A. Scheindlin, in her strongly worded order, stated that FOIA exemptions “are not concerned with chilling agency efforts to obfuscate, which are anathema to the operation of democratic government.” The reform bill, despite having room for improvement, would facilitate meaningful progress towards constraining these excuses and obfuscations.

In recognition of Sunshine Week and the FOIA Improvement Act’s commendable contributions to government transparency, Restore the Fourth has added our name to a letter asking President Obama to “repudiate the positions taken by the Justice Department and instead publicly and unequivocally endorse the bipartisan FOIA Improvement Act.” The President’s support would be consistent with the promise he made on his first full day in office — a promise to renew the “commitment to the principles embodied in the FOIA” and usher in a new era of open government.

 

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