The House of Representatives
yesterday approved the Freedom of Information Act Improvement Act,
which had previously been adopted by the Senate. If signed by President Obama,
as expected, it will strengthen several provisions of the FOIA and should
enhance disclosure of government records.
The bill
"reaffirms the public's right to know and puts in place several reforms to
stop agencies from slowly eroding the effectiveness of using FOIA to exercise
that right," said Rep. Mark Meadows (R-NC).
"The most
important reform is the presumption of openness," according to Rep.
Meadows. "Before claiming an exemption [from disclosure under FOIA],
agencies must first determine whether they could reasonably foresee an actual
harm."
"The bill would also put a
25-year sunset on exemption 5 of FOIA, the deliberative process
exemption," added Rep. Carolyn Maloney (D-NY). "It
would modernize FOIA by requiring the Office of Management and Budget to create
a central FOIA Web site for requesters to submit their request, making it more
efficient and accessible to the public."
"This bill would strengthen
the independence and the role of the Office of Government Information Services
[the FOIA ombudsman]. OGIS has served a critical role since it was formed in
response to the last FOIA reform Congress adopted in 2007," she noted.
The bill does not address
structural challenges facing FOIA, which is designed to serve individual
requesters, not the public as a whole. Nor does the bill provide any additional
resources for implementing FOIA, which currently consumes hundreds of millions
of dollars per year with ambiguous results.
"We have a whole process and
money and people devoted to FOIA and I just don't think it's getting to the
heart of what FOIA's about," said Meredith Fuchs, former General Counsel of
the Consumer Financial Protection Bureau, last March. "I don't think it's
the real way to keep government accountable.
"
Such criticism from a government official would be
unremarkable, except that Ms. Fuchs used to be a litigator for FOIA requesters
against government agencies (and years ago she contributed an amicus brief for one of my own lawsuits). She spoke at a fascinating session of the Freedom of
Information Day 2016 conference at the Newseum that featured former
non-governmental FOIA advocates who have gone into government service.
Tom Blanton of the National
Security Archive presented a ringing endorsement of the FOIA's efficacy as a
tool for government accountability at a recent Columbia Law School conference on the fiftieth anniversary of FOIA
(beginning around the 50' mark).
Passage of the FOIA Improvement
Act was hailed yesterday by Senator Patrick Leahy, the National Security Archive, Openthegovernment.org, the Project on Government Oversight, and the Sunshine in Government Initiative, among other
supporters of the measure.
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