House passes sweeping FOIA reform legislation

Francis Riviera

The House on Monday passed legislation that would create the most sweeping reforms to federal open records laws in nearly a decade. 

Approved by voice vote, the measure would limit exemptions under the Freedom of Information Act (FOIA) that now allow federal agencies to hold back information.

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The bill would also create a single online portal for people to make FOIA requests and require agencies to publicly post frequently requested records online.

The legislation has been years in the making, following persistent complaints about the FOIA process from journalists, the public and members of Congress.

“We regularly use the Freedom of Information Act and regularly find ourselves frustrated,” said Rep. Darrell Issa (R-Calif.), the bill’s author and a former chairman of the House Oversight Committee. 

Outside advocates, in addition to House and Senate lawmakers, are pushing to ensure the legislation finally crosses the finish line.

The last attempt to reform the FOIA process stalled, in 2014. 

That bill had faced opposition in the Senate, with companies and government agencies raising concerns about what kinds of information could be released, but the legislation ended up unanimously passing the upper chamber in December.

The legislation never came up for a vote in the House.

The new bill, the FOIA Oversight and Implementation Act, H.R. 653, represents the most significant push to overhaul the FOIA system since 2007.

Among other things, it would reform how agencies can redact some information using Exemption 5, which is often derisively referred to as the “withhold because you can” statute. In practice, it is supposed to apply to “interagency or intra-agency communication,” such as draft documents.

The legislation, however, requires agencies to disclose any “records that embody the working law, effective policy, or the final decision of the agency.” It also mirrors the Senate legislation in requiring that Exemption 5 cannot be used on any information older than 25 years.

The measure would codify nonbinding directions from the Obama administration and the Justice Department on how to fulfill document requests with a “presumption of openness,” in addition to improving public digital access to records released through FOIA and making oversight of the process more independent.

Senate Majority Leader Mitch McConnellMitch McConnellProgressive group changes tone on Kaine Trump hits Kaine on TPP: He supports a 'job killer' Clinton maps out first 100 days MORE (R-Ky.) on Monday would not say whether the Senate’s version of the legislation would be placed on the calendar.

“He hasn’t announced anything on that yet,” a spokesman for McConnell said in an email.

A few hours before the House vote, Sen. John CornynJohn CornynGOP senators to donors: Stick with us regardless of Trump Hopes dim for mental health deal Overnight Finance: Senate punts on Zika funding | House panel clears final spending bill | Biz groups press Treasury on tax rules | Obama trade rep confident Pacific deal passes this year MORE (R-Texas) — McConnell’s second-in-command, as majority whip — spoke on the Senate floor and pushed for the upper chamber to take action on FOIA reform.

“I hope this chamber will soon join our colleagues in the House and consider this important legislation,” he said. “There may be some areas we have to make some slight changes, but
essentially, this presumptive notion of openness is important to the functioning of our democratic form of government, and I look forward to us passing the law passed by the House chamber … later today.”

Advocacy groups say they are determined to get a reform bill to President Obama’s desk before he leaves office.

Elizabeth Hempowicz, a public policy associate at the Project On Government Oversight (POGO), said that the group will begin writing letters, making phone calls and paying office visits to senators to build support for the bill. 

“I’m going to cross my fingers and say that I hope this is the year for FOIA reform,” she said. “People are really coming to the table in hopes of getting something passed, something with some real teeth in it.”

POGO said it has been working with outside entities — including industries and government agencies — to resolve any issues they might have with the legislation.

During the last attempt at FOIA
reform, the Federal Trade Commission and Securities and Exchange Commission reportedly warned that the legislation could lead to violations of attorney-client privilege.

Last year, the Department of Defense proposed adding a new exemption for unclassified “military tactics, techniques and procedures.” It was not added as a provision to the National Defense Authorization Act, and the department is expected to lobby to have it included in any reform to the process.

Passage of the FOIA bill in the House puts the reform effort “in good shape,” said Michael Macleod-Ball, chief of staff at the ACLU Washington legislative office. 

The ACLU and POGO are among roughly 70 organizations that are pushing Congress to enact FOIA reform.

There are some differences between the two versions of the bill, but advocates and lawmakers say the differences should be fairly easy to overcome.

“The expected vote in the House is a testament to the strong, bipartisan support in Congress for strengthening FOIA and improving Americans’ access to government information,” said Sen. Chuck GrassleyChuck GrassleyTop Dem Senate hopefuls to skip convention Election to shape Supreme Court Why one senator sees Gingrich as Trump's best VP choice MORE (R-Iowa), the chairman of the Senate Judiciary Committee, prior to the House vote.

“I’m optimistic that it will help to clear up any remaining issues that our colleagues may have and that we’ll soon send a bill to the President’s desk,” he said. 

One advocacy group that has been leading the charge on FOIA reforms, however, criticized what it said were last-minute additions to the House bill, saying they would exempt the intelligence community from certain provisions of the FOIA amendments, including the consultation process.

“Exempting the Intelligence Community agencies, which most need the reforms, from the consultation process weakens the reform intended by the committee,” OpenTheGovernment.org said in a release.

The amendments “are particularly offensive in this bill intended to promote openness across the federal government,” said Patrice McDermott, executive director of OpenTheGovernment.org.

This post was updated at 7:25 p.m.

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