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Lawmakers unveil major changes to FOIA

Reform legislation emerges from Senate committee that would overhaul Freedom of Information Act, increase transparency

The Senate Judiciary Committee unveiled long-awaited legislation Tuesday to reform the Freedom of Information Act (FOIA) that would make it more difficult for government agencies to withhold documents from the public.

One of the most significant changes to the law, on which lawmakers and transparency advocates have spent months working together, revolves around a FOIA exemption that transparency advocates say has been widely misused, and cited thousands of times to explain why certain records must be concealed from the public.

Exemption 5 applies to government records that are part of a behind-the-scenes decision-making process — called “deliberative” — and covers any “inter-agency or intra-agency memorandums or letters,” drafts and attorney-client records. It’s a discretionary exemption that government agencies could waive in favor of disclosure. But transparency advocates say the government rarely does.

Nate Jones, the FOIA coordinator for George Washington University’s National Security Archive, said “everyday requesters” would greatly benefit if the bill, dubbed the FOIA Improvement Act, is passed and signed into law.

“The most important part of this bill is its fix to the Exemption 5 'withhold it because you want to' exemption,” Jones said. “Agencies will no longer be able to hide misdeeds by withholding requested documents merely by claiming they were inter- or intra-agency communications."

In 2012, according to Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., one of the sponsors of the FOIA reform bill, government agencies cited the exemption more than 79,000 times, a 41 percent increase compared with the previous year. Last year, according to statistics compiled by The Associated Press, the use of Exemption 5 reached an all-time high: 81,752, accounting for 12 percent of all the open-records requests government agencies processed in 2013 that resulted in denials.

"The Freedom of Information Act is one of our nation's most important laws, established to give Americans greater access to their government and to hold government accountable," Leahy said Tuesday. In March, the senator chaired a Judiciary Committee hearing where he outlined his concerns about the growing use of exemptions.

Leahy said the FOIA reforms he and Cornyn authored have attracted "broad, bipartisan support." 

Earlier this year, Leahy told the Associated Press that he was becoming concerned about the “growing trend toward relying upon FOIA exemptions to withhold large swaths of government information.”

"It becomes too much of a temptation,” Leahy added. “If you screw up in government, just mark it 'top secret.'"

Agencies will no longer be able to hide misdeeds by withholding requested documents merely by claiming they were inter- or intra-agency communications.

Nate Jones

GW University National Security Archive

The language in the bill, which Leahy is co-sponsoring with Sen. John Cornyn, R-Texas, borrows heavily from Attorney General Eric Holder’s March 2009 FOIA guidelines, which advised government agencies to “adopt a presumption in favor of disclosure.” The FOIA legislation takes some of the language in Holder’s guidance and establishes it as law.

For example, Holder’s guidelines, issued just two months after President Barack Obama signed an executive order promising to usher in a new era of transparency and open government, said government agencies should not withhold records because the information may be embarrassing to public officials or “speculative or abstract fears.”

That language is now included in the reform bill, which would prevent government agencies from withholding documents where no harm would result if they were released. Agencies can now withhold records only if disclosure is prohibited under the law, or would result in “reasonably foreseeable harm” to an interest protected by one of nine FOIA exemptions.

Under the reform bill, records that fall under Exemption 5 could no longer be permanently withheld from requesters. The legislation says Exemption 5 records can be released after 25 years. That could lead to a flood of FOIA requests, and would also be a boon for historians.

If government agencies continue to assert Exemption 5, they will now have to balance the public interest against the need for continued secrecy.

Patrick Leahy
Sen. Patrick Leahy, D-Vt., is co-sponsoring the FOIA reform bill.
J. Scott Applewhite/AP

The Justice Department invoked the exemption as grounds for withholding from The New York Times and the American Civil Liberties Union a memo prepared by the Office of Legal Counsel (OLC) that established the legality for using drone strikes to assassinate Americans if the government believes they are "senior operational leaders" of Al-Qaeda or an "associated force."

Katherine Hawkins, a national security fellow with the transparency group OpentheGovernment.org, said that while the bill does not address every weakness in FOIA, “it addresses one of the most important: Exemption 5.”

“Exemption 5 has been used to withhold the OLC drone memos, a decades-old CIA history of the Bay of Pigs invasion, and countless other government documents on grounds that they are not ‘final decisions,’” she said. “This law will make it harder for agencies to conceal information by writing ‘draft’ at the top of the page, by allowing courts to weigh the public interest in releasing documents against the executive’s interest in confidentiality.”

Other notable reforms in the bill include requirements that government agencies make some records available to the public online — such as records that were the subject of at least three separate FOIA requests — and that agencies give requesters at least 90 days to appeal decisions. Currently, the law does not provide a specific time frame to appeal FOIA decisions and varies by agency.

The use of FOIA has skyrocketed under the Obama administration. Government agencies received 704,394 FOIA requests in 2013, an 8 percent increase compared with the previous year.

The Department of Homeland Security (DHS), which accounts for more than 30 percent of those requests, said it received a “staggering” 231,534 FOIA requests in 2013 — more than any other federal agency.

DHS also boasts the largest backlog of pending FOIA requests, and said its backlog for fiscal year 2013 increased from 28,553 to 53,598 requests. 

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