By Lena Williams, Guild-CWA :: Days after the Senate Judiciary Committee indicated it was going to mark up the bipartisan FOIA Improvement Act of 2014, Congress adjourned last week for the fall midterm elections leaving the bill on a long list of unfinished business.
The bill, sponsored by Democratic Sen. Patrick Leahy of Vermont and Republican Sen. John Cornyn of Texas, proposes several critical changes to key federal access to information statutes, making it easier for journalists and ordinary citizens to obtain government records, including inter-agency memorandums.
But in an election year, with constituents to answer to, such matters apparently weren’t considered a priority for politically motivated lawmakers.
Supporters of the bill can take some solace in knowing that the FOIA wasn’t the only piece of legislation to get short-shrift. When Congress left town — a week before its originally scheduled date of Sept. 29 – it had passed just two bills since its summer vacation: a stopgap funding bill to avoid a government shutdown Oct. 1 and authorization to arm Syrian rebels to fight Islamic extremists.
Public interest advocates, fearing the FOIA will die at the end of the year if Congress does not act soon, have urged Americans to contact their senators to tell them to support the legislation.
Amid threats of another government shutdown, FOIA had not been viewed as a high-priority. Without public pressure to pass FOIA immediately, Congressional leaders pushed it aside.
Leahy has called FOIA, “one of our nation’s most important laws,” and expressed his commitment to expand and improve it.
“I have sought for decades to make our government more open and transparent,” Leahy said in a joint statement with Cornyn in June.
Leahy said strengthening FOIA “will enshrine into law the presumption of openness that the president laid out on his first day in office when he said the FOIA should be administered with a clear presumption and ‘in the face of doubt, openness prevails.’”
The FOIA Improvement Act amends the Freedom of Information Act to:
- Require federal agencies to make agency records available for public inspection in an electronic format.
- Limit the authority of an agency to charge a fee if the agency misses a deadline for complying with a FOIA request.
- Establish a presumption in favor of disclosure and prohibit the application of exemptions from FOIA based on technicalities.
- Expand the authority and duties of the Chief FOIA officer of each agency for promoting compliance with the FOIA disclosure.
One of the bill’s most important amendments concerns “Exemption Five,” which applies to inter-agency or intra-agency memos or letters that currently are not publicly available.
The Leahy/Cornyn bill adds a “public interest balancing test” to require federal agencies to consider the public interest in disclosure of government information before invoking a FOIA exemption.
Leahy said that the 2013 Secrecy Report from OpenThe Government.org showed that federal agencies used Exemption 5 more than 79,000 times in 2012 – “an incredible 41 percent increase from the previous year.”
“This does not exemplify the presumption of openness that we expect from our government,” Leahy said.
The fact that Congress has left Washington doesn’t mean Americans have to wait to fight for the FOIA bill: Tell members of Congress visiting their home districts and their opponents that you want and expect them to act on the bill before the end of the year.
The Guild and other concerned First Amendment and open government advocates say Americans must make Congress and President Obama understand that democracy itself is at stake.
As Senator Leahy put it: “Both Democrats and Republicans understand that a commitment to transparency is a commitment to the American values of openness and accountability and to the public’s right to know what their government is doing.”