Why Banking Interests’ Eleventh Hour Opposition to FOIA Bill Is Wrong
Toby McIntosh and others have reported that the key reason the FOIA Improvement Act has not been scheduled to the House calendar is opposition by lobbyists for the Financial Services Industry; the broader Issa-Cummings version of this House Bill passed 410 to 0 in February; the bill recently passed the Senate unanimously.
It’s no wonder the bill has unanimous Congressional support. It has important fee fixes, strengthens the FOIA Ombuds Office of Government Information Services, and, most importantly, reforms the increasingly abused and misapplied Exemption Five, all of which will benefit ordinary requesters.
What the bill does not do, however, is alter Exemption 8, which protects matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.”
First, get over the absurdity of Speaker Boehner bowing to secret complaints of an industry that forced the US economy to its knees due to lack of oversight.
Second, tell House leadership that the current FOIA bill does not change the status quo of information currently protected by Exemption 8 regarding financial information. The Senate bill overcame a series of holds by members of the Senate Banking Committee by explaining in strong Senate reporting language that the current standard remains: “Extreme care should be taken with respect to disclosure under Exemption 8 which protects matters that are ‘contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.'”
Furthermore, the Senate report states: “Nothing in this legislation shall be interpreted to compromise the stability of any financial institution or the financial system, disrupt the operation of financial markets or undermine consumer protection efforts due to the release of confidential information about individuals or information that a financial institution may have, or encourage the release of confidential information about individuals. This legislation is not intended to lessen the protection under Exemption 8 created by Congress and traditionally afforded by the courts.”
The presumption of harm standard (which agencies are already required to follow due to Attorney General Holder’s FOIA memo) does not apply to non-discretionary exemptions, such as exemption 8, or to statutory FOIA exemptions such as those included in Dodd-Frank Wall Street Reform and Consumer Protection Act or other FOIA legislation.
So why is the banking industry opposing this bill? I really don’t know. To flex their muscle? To set precedent for opposing future oversight legislation?
What I do know is it would be a travesty if Speaker Boehner kills this bill and allows them to win after FOIA reform has alreay passed both the House and Senate unanimously.