Will Congress Make the Federal Government Less Secretive?

A bill to improve public-records access is advancing, but the endgame is murky and some provisions are rankling open-government advocates.

House Oversight and Government Reform Committee ranking member Elijah Cummings and Chairman Jason Chaffetz at a hearing in June.
AP Photo/Pablo Martinez Monsivais
Ben Geman
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Ben Geman
Jan. 11, 2016, 8:30 p.m.

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 House hear­ings 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.

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