FOIA Reform Dies While the Press Looked the Other Way

December 15, 2014

By Kelly J O’Brien via CJR

More than two years of work by open government advocates collapsed on Thursday night when House Speaker John Boehner closed the final legislative session of the 113th Congress without bringing the FOIA Improvement Act of 2014 to a vote.

Similar legislation passed the House with a vote of 410-0 earlier this year, and the Improvement Act was given unanimous consent in the Senate on Monday, so it is safe to say that if the bill had come to the floor it would now be on its way to the President’s desk.

Amy Bennett is the assistant director of OpenTheGovernment.org, which since 2011 has helped build a coalition of pro-transparency groups and lawmakers dedicated to improving FOIA. She expressed frustration at Boehner’s refusal to acknowledge the momentum behind the bill. “It feels a little 11th hour,” she said.

But even more frustrating to advocates fighting to push the bill through its final stages was an almost complete lack of interest from the major publications most likely to benefit from better freedom of information laws. When US Sen. Jay Rockefeller (D-WV) almost killed the bill singlehandedly in the face of otherwise unanimous support earlier this week, it didn’t garner more than an eyebrow raise from the media.

“They won’t spend a moment on this—I don’t get it,” Alex Howard, who blogs about transparency at E Pluribus Unum, told Margaret Sullivan earlier this week. She then summed up the irony, writing, “If the press won’t represent itself — and the people — by showing some interest in the free flow of government information, who will?”

Had more members of the press looked into the details of the Improvement Act of 2014 before it was too late, they would have found an imperfect bill that is nonetheless much more ambitious than previous FOIA reforms.

The central feature of the legislation, according to David Cuillier of the Society for Professional Journalists, is its adoption of the so-called “presumption of openness.” When a block of information falls under one of FOIA’s nine exemptions, the presumption would force agencies to consider releasing the less sensitive parts, making it harder to withhold information if it wouldn’t actually harm any specific government “interest” (like national security, for example).

President Obama has already issued an executive order telling agencies to presume openness, but the Act would codify the idea into law. “That may seem small, but it’s so important,” said Cuillier. “It’s the whole way of seeing access to public records and our government. It’s a new paradigm and perspective for how we deal with public records.”

The new reforms would also take aim at Exemption 5, which open government advocates say is frequently abused. The exemption allows agencies to withhold internal communications that fall under some kind of legal protection, like attorney-client privilege or, most problematically, “deliberative process privilege,” which allows agencies to keep early-stage discussions and opinions private.

The Improvement Act would add a sunset provision to the exemption, requiring inter- or intra-agency communications to be released after 25 years. Bennett says she’s happy with that being a first step toward a larger reform somewhere down the road. “It will make agencies more comfortable with the fact that this information can be released and the sky doesn’t fall, and democracy doesn’t burn down,” she said.

If there’s anything that will temper the disappointment of journalists and other activists who watched the Improvement Act die on Boehner’s desk on Thursday, it will be this common acceptance that FOIA reform is a gradual, ongoing process.

“Every time we make improvements there’s always a lot of backsliding,” said Cuillier. “Agencies are really clever in figuring out how to hide what they don’t want the public to see. So this is an ongoing battle that journalists—and citizens—just have to keep on.”

“It’s not unusual that the day after a FOIA reform bill passes we start talking to people in the House and the Senate about what we can do next time,” Bennett adds.

Lawmakers work best when the public and the press keep a close eye on them. That scrutiny was lacking in the final stages of the FOIA Improvement Act of 2014—and the bill may have failed because of it. The media has to work harder to ensure that doesn’t happen again. As Cuillier said, “If we’re going to be beacons of democracy, we need to walk the talk.”

Kelly J O’Brien is a freelance journalist based in Boston. Follow him on twitter at @kelly_j_obrien.

Photo: Mellyjean