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
Add to Briefcase
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.

What We're Following See More »
Nadler: Goodlatte Could Subpoena Rosenstein
1 days ago

"The top Democrat on the House Judiciary Committee says Chairman Bob Goodlatte, R-Va., is poised to subpoena the Justice Department for former FBI Director James Comey’s memos, which the agency so far has failed to produce. Rep. Jerrold Nadler, D-N.Y., warned such a move puts Deputy Attorney General Rod Rosenstein in jeopardy of being placed in contempt of Congress and the special counsel investigation of being shut down prematurely."

House Ag Committee Passes Farm Bill
1 days ago
"On a party-line vote, the House Agriculture Committee approved a five-year farm bill on Wednesday that tweaks the supports now in place—a promise of certainty, leaders said, during a period of low commodity prices and threats of a trade war with agriculture on the front line." The bill includes no new funding over the last farm bill.
Schneiderman Urges NY Lawmakers to Close “Double Jeopardy Loophole”
1 days ago
Ryan Tamps Down AUMF Talk
2 days ago

Referring to the AUMF introduced by Sens. Tim Kaine and Bob Corker Monday evening, House Speaker Paul Ryan said Tuesday "he won’t allow any bill to come to the House floor that he thinks would restrict military commanders’ ability to fight." Ryan "defended the legality of U.S. military strikes last week against chemical weapons-related sites in Syria, saying President Trump had the authority to order them under the Constitution’s Article II commander-in-chief powers."

Judge Denies Requests by Cohen, Trump
3 days ago

Attorneys for both President Trump and his attorney Michael Cohen lost a court challenge today, as they sought to suppress evidence gathered in a raid of Cohen's office and hotel room. "U.S. District Court Judge Kimba Wood denied the requests and ruled that prosecutors will get first access to the information, followed by Cohen’s defense team ten days later. Wood noted that she has not yet decided whether she will appoint a special master in the case at all."


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.