FOIA reform heads to Obama’s desk

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Congress approved legislation to expand the public’s access to federal records, and the measure now goes to President Obama for his signature. 

The legislation to strengthen the Freedom of Information Act (FOIA) is the first major overhaul of the 1966 law in nearly a decade. The Senate passed the bill in March and it passed by voice vote in the House on Monday.

“This is the best bill we can send to the president’s desk,” said Rep. Mark Meadows (R-N.C.), who leads the Oversight subcommittee on Government Operations.

Similar bills have faced high-profile opposition from the Justice Department and other agencies in the Obama administration. 

But the White House said Obama would sign the bill after the Senate hashed out a deal to bring skeptical members onboard. Hours after the vote, the White House said Obama “looked forward to signing” the bill to make “important upgrades” to the law. It touted the administration’s past transparency efforts and continued to push Congress to make the open records law apply to itself.

Interest groups, journalists, and researchers who have dealt with the FOIA process complain about delays and unnecessary redactions from agencies. Lawmakers have described the process as broken. Both chambers passed their respective bills this year. Instead of merging them in a conference committee, the House decided to take up the Senate version on Monday. 

“It builds on work of the Obama administration, which has done more to advance transparency than any administration in history,” said Elijah Cummings (D-Md.), who cosponsored the House version. 

The changes would put the force of law into a 2009 Obama directive urging agencies to error on the side of disclosure when handling open records requests. It would also increase access to digital records. 

The bill codifies a so-called presumption of openness, which critics say the administration has not lived up to despite Obama’s directive. Under the new provisions, agencies would have to point to a specific “foreseeable harm” when withholding documents that would typically be exempt from public release.

“Now while some but far from all federal agencies have had an effort to comply with the letter of the law, very few have complied with the spirit of the law,” Meadows said. 

The bill would also limit the government’s withholding of documents related to the deliberative process if they are more than 25 years old. That FOIA exemption is derisively referred to as the “withhold it because you want to” provision by transparency advocates.  

The legislation would also create a single FOIA request portal for all agencies, make more documents available online and strengthen the government’s FOIA ombudsman. 

The House version was seen as stronger than the Senate version that advanced. It would have required the government to disclose opinions that are “controlling interpretations of law” and the memos used to create those decisions. 

The Senate bill was also narrowed before it was approved in March. To bring on senators sympathetic to the Justice Department, the chamber carved attorney work product and communications from the 25-year change.

Darrell Issa (R-Calif.), the lead sponsor of the House bill, applauded passage, but pointed to the large amount of work that was left on the cutting room floor. 

“I don’t want to belabor the point, but when this bill becomes law and is signed by the president, there will be enough left for a new bill to start again,” he said. “Having said that, we celebrate today that we’ve made some milestones.”

— Updated 8:30 a.m. with the White House comments.

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