Thomas Whittington, a Chicago area tour guide, familiarizes himself with the one of many exhibits at the new McCormick Tribune Freedom Museum in Chicago. (AP Photo/Charles Rex Arbogast)
WASHINGTON — On Thursday evening, the 113th Congress (Jan. 3, 2013 – Jan. 3, 2015) closed shop and will be remembered as the least productive in American history.
Yet its partisan deadlock, which led to the third longest government shutdown in American history in October 2013, won’t be its only legacy: The 113th Congress will also be remembered for quietly suffocating Freedom of Information Act (FOIA) reform despite unanimous, bipartisan support for the legislation.
FOIA reform
The FOIA Improvement Act of 2014 was introduced in the Senate in June by Sens. Pat Leahy, D-Vt., and John Cornyn, R-Texas, to amend the FOIA in significant ways.
The bill would have established a “presumption of openness” that would have stopped government agencies from withholding information due to exemptions based on technicalities. Agencies would have been directed to evaluate FOIA requests based on what can be released, rather than what can be kept secret.
It also would have added public interest to the B5 exemption in FOIA, which allows agencies to withhold almost anything they want simply because they want to. Under the new public interest amendment, agencies would have to demonstrate that their concerns outweigh that of the public in order to withhold or redact documents.
Finally, the bill would have put a 25-year cap on a B5 exemption, meaning that anything released more than 25 years earlier could not be withheld. As the Sunlight Foundation noted in June, this means that information about important historical events — such as the country’s failed Bay of Pigs Invasion in Cuba in 1961 — could be made public. The Associated Press has revealed that the B5 exemption was used 81,752 times in 2013. In fact, the exemption was used in May to cover up information regarding the Bay of Pigs.
The death of a bill
The FOIA Improvement Act was unanimously approved by the Senate Judiciary Committee on Nov. 20, and a companion bill (H.R. 1211) passed 410-0 in the House of Representatives on Feb. 25. It was truly a bipartisan bill with support from all members of Congress.
Nonetheless, Sen. Jay Rockefeller (D-W.Va.), chairman of the Senate Commerce Committee, put a hold on the bill on Dec. 5 — part of the behind-the-scenes efforts made to kill the bill just days before it would have become law.
The Justice Department, along with the Federal Trade Commission and the Securities and Exchange Commission, reportedly lobbied Congress to hold the bill, despite the unanimous support it had received. There are also reports that banking lobbyists were involved.
While asserting that he has “a long record of support for open government and the FOIA process,” Rockefeller echoed these agencies’ concerns in a statement on Dec. 5, when he relayed his concern about the bill’s “unintended consequences.”
“According to experts across the federal government, these provisions would make it harder for federal agency attorneys to prepare their cases, and they would potentially give defendants new ways to obstruct and delay investigations into their conduct,” Rockefeller said in his statement.
As one of the bill’s key provisions is that information would not be released when a law exempts it, Rockefeller’s hold seems to have more to do with agencies’ lobbying efforts — and their fear of greater openness — than concerns about federal law.
Rockefeller released the hold following pushback from concerned FOIA advocates, including Sen. Leahy, who said on Dec. 5 after hearing of Rockefeller’s objections: “This week, we can pass this bill in the Senate and send it over to the House, where I am confident that it will pass, and send it to the president to sign before the end of the year.”
“There is no reason to delay this legislation, which has broad support from a range of stakeholders, costs very little to implement, and will improve access to government for all Americans,” Leahy continued.
The bill passed the Senate on Dec. 8, but failed to be brought up for a vote in the House before it adjourned its final session on Dec. 16. When asked about the bill before Congress shut its doors in Dec. 11, Speaker of the House John Boehner, R-Ohio, said, “I have no knowledge of what the plan is for that bill.” Later that evening, Leahy tweeted in response: “And Boehner kills #FOIA improvements.”
The process by which the bill was killed by government agencies at the last minute represents a new tactic and disingenuous approach by government agencies, lawmakers and the executive branch to further discount the role of citizens in governmental processes and hamper the freedom of information.
“It’s deeply disheartening that two different bills that passed unanimously in the House and Senate didn’t become law,” said Alex Howard, editor of E Pluribus Unum, a blog on government information technology. “The capacity for lobbying at just the right time without the notice of most of the public and the press to report on it resulted in this.”
Howard told MintPress News that there are more forces in government working toward opacity than for transparency. Information is power, he said, and control of information allows that power to operate clandestinely.
“Influence can be apprised without awareness of the public or regulators – that’s the context for why reforming transparency laws, or regulating them, will always be challenging,” he said, adding that Congress, the White House and the press are all culpable for the death of the bill because they weren’t “paying attention to it at a pivotal time.”
“In the face of doubt, openness prevails” — or does it?
Just after coming into office in 2009, President Barack Obama issued a memo for the heads of executive departments and agencies addressing the FOIA. It states: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.”
The memo directs all agencies, including the DOJ, SEC, and FTC, to “adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.”
Following the issuance of that memo, Attorney General Eric Holder wrote that the DOJ would uphold Obama’s order on FOIA reform. In fact, the FOIA Improvement Act language was modeled after the DOJ’s own memorandum, as noted by Trevor Timm in Techdirt.
The DOJ memorandum states:
“[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”
Meanwhile, the FOIA Improvement Act says:
“An agency shall withhold information under this section only if a) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection or other provision of law; or b) disclosure is prohibited by law”
Explaining that the two quotes are almost identical, Techdirt’s Timm wrote: “The Justice Department is objecting to making its own supposed policy the law, and confirms what many have long believed: the agency does not want to — or have to — comply with its own FOIA rules.”
Shawn Musgrave, projects editor at Muckrock, a collaborative news site that shares government documents, filed an FOIA request on Dec. 12 for all communications between Sen. Rockefeller and the DOJ pertaining to “the FOIA Improvement Act (S.2520) or related bill FOIA Oversight and Implementation Act of 2014 (FOIA Act, H.R. 1211).” His goal is to see what, if any, information regarding why the bill was not passed will surface.
News organizations and advocacy groups have called for the 114th Congress to fast track a new bill when the government reopens in January.
Yet as E Pluribus Unum’s Howard noted, “The challenge is that the people who co-sponsored it are no longer at the head of the two committees.”
In the House, he explained, “Darrell Issa [R-Calif.] is no longer the head of the Oversight [and Government Reform Committee], and Leahy’s no longer at the top of the Senate Judiciary.”
And while the proponents of the bill are gone, he noted, “The interests that don’t want this to happen aren’t going to go away.”