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What We Can Learn from the Death of a Unanimously-Supported FOIA Bill, and Janus-Faced Support for Open Government

December 18, 2014
"Merry Christmas"

At forty minutes past nine o’clock on December 11th, 2014, Speaker Boehner announced, “My job tonight is to say thank you, and Merry Christmas,” gaveled House business to a close, and killed Freedom of Information Act reform, despite unanimous approval in both houses.

During the 113th Session of Congress, very good Freedom of Information Act bills passed the House with 410 votes and passed the Senate via unanimous concent only to die.

Even more depressing: FOIA bills dying despite receiving unanimous votes is not an abnormality, it’s a trend.

The Senate Judiciary Committee has now passed FOIA reform three times  since 2007 without it becoming law.  In 2010, the Faster FOIA bill passed the entire Senate by unanimous consent, only to die in the House.  In 2011, the Faster FOIA bill again passed out of the Senate by unanimous consent and died an even more ignoble death –Speaker Boehner gutted it and replaced it with the last-minute, secretly-drafted “Budget Control Act of 2011.″

The death of the 2014 bill stings even worse.  It was better-crafted than each of the previous three and was drafted over a two year process in conjunction with both the Senate and the House.  Unlike previous FOIA bills, Representatives Daryl Issa (R-Ca) and Cummings (D-Md) acted first and passed the Freedom of Information Act Implementation Act in February with 410 votes and none opposing.

The Senate version, the FOIA Improvement Act, largely mirrored the House bill although in one key respect it was much stronger.  It made it harder for agencies to apply Exemption Five, an exemption which allows the withholding of “inter-agency or intra-agency memorandums or letters.”  While this exemption is often used correctly to preserve candid communications between government employees, its broad wording and ease of applicability has led to extreme (even offensive) overuse, including censoring information on DOJ Nazi hunting (and protecting), a CIA history of the Bay of Pigs invasion, documents on US policy during the Rwandan genocide, and many more.  President Obama’s adviser John Podesta has even called it the “withhold it because you want to” exemption.

Senators Leahy (D-Vt) and Cornyn (R-Tx) and their staffs worked tirelessly to secure unanimous approval from the Senate Judiciary Committee.  Then, the two negotiated successfully to get several (my count is four) Senators to lift their holds on the bill.  Most, though not all, of the negotiations were conducted privately.   Senators’ concerns over the bill’s cost and potential harm to banks and regulatory agencies were assuaged.  The bill passed the  Senate via unanimous consent.

Bouyed by the 410 unanimous votes for the bill, and pledges from the offices of the House sponsors that the Senate version (with House input including the concept of an online FOIA portal) would pass, open gov advocates were optimistic for genuine FOIA reform.  With hindsight, one newspaper’s headline on FOIA reform comes close to evoking “Dewey Defeats Truman.”

Open government advocates became increasingly worried as a vote for the bill was not placed on the Leadership Calendar on Tuesday and Wednesday.  At crunch time, on the morning of Thursday December 11, Speaker John Boener (R-Oh) told a reporter with the Columbus Dispatch, “I have no knowledge of what the plan is for that bill.”  However, Senator Leahy’s office has said that it had been in communication with the Speaker’s office on the bill, so he certainly had some knowledge.  Representatives Issa and Cummings (who agree on very little) put out a statement calling for the bill to come to a vote, and their staffers were pushing the Speaker’s office for one.

According to the House Majority Leader’s Calendar, Republican leadership was able to find time to allow votes on naming more than a dozen post offices, court houses, and highways, and to vote on several other bills that had no chance of passing in the Senate or becoming law.  But they could not squeeze in fifteen minutes (or less) to vote on FOIA reform, which was supported unanimously in both chambers.  Alas, at forty minutes past nine o’clock on December 11th, 2014 Speaker Boehner announced, “My job tonight is to say thank you, and Merry Christmas,” gaveled House business to a close, and killed the FOIA bill.

After the bill’s death, folks began debriefing why it died and assessing blame.  Yes, I am going to dip into that –just a little bit– but with the goal of making a larger point and suggesting how those who believe in the Freedom of Information Act can strengthen the FOIA in the future.  Much has correctly been written about the silence by the mainstream media on the bill.  Following Alex Howard’s lead, the New York Times public editor Margaret Sullivan and Kelly O’brien at the Columbia Journalism Review have written scathing and necessary pieces condemning mainstream media’s ignorance of this bill.  As Sullivan asked, “If the press won’t represent itself — and the people — by showing some interest in the free flow of government information, who will?”

Most recently, Freedom of the Press Foundation’s Trevor Timm accused Obama’s Justice Department of secretly helping to kill the FOIA bill.  Timm’s assertion about the absurdity of the alleged DOJ (and other agency) objections to the FOIA bill is correct.  They are objecting to an instruction that the Attorney General has already given, and that agencies should already be following.  The DOJ’s alleged threat of a deluge of FOIA lawsuits is also false.  Fewer than one percent of all FOIA requests go to court; usually because agencies did not release information they should have, a problem this bill would have addressed.  But criticism of of this specific provision (as absurd as it is) points to a larger point: even if this language was removed from the bill, the Department of Justice and other agencies would have simply seized on another red herring to attempt to kill the FOIA bill while claiming they support openness.

Others have criticized the Obama administration’s lack of support of the bill –and of FOIA in general.  (For the record, it seems to me that the Democratically-controlled Senate overcame White House radio silence to pass the bill, and vocal White House support probably would have further hindered passage through the Republican-controlled House.)  I had hoped that newly-hired John Podesta –who used to host jampacked, terrific FOIA round tables at the Center for American Progress– would have given Obama’s pro-executive privilege  pro-secrecy advisers a kick in the pants and explained to them how big, easy, base-pleasing, and legacy-building a pro-FOIA, pro-transparency tilt during Obama’s last two years would be.  Alas, that hasn’t happened.

Of course, after the fact finger pointing is only helpful so long as it helps us to meet our objectives in the future.  And, I think the key takeaway may be:

Many people –in Congress, in the agencies, in the White House, in the media– proclaim they believe in open government, but don’t really.  To me, that’s the only plausible reason a FOIA bill could garner unanimous approval (thrice in the Senate over the past seven years!) and still die; that’s the only plausible reason agencies whisper that instructions about FOIA currently on the books will ruin the federal government as we know it; that’s the reason for White House silence on the benefits the FOIA Ombuds office not being forced to run its reports though the Department of Justice so they can be “rosified;” that’s the reason the New York Times wins Pulitzers for its FOIA-based reporting, but doesn’t assign a Congressional beat reporter to cover the bill’s death.

How do we overcome these FOIA Januses?  First, we must avoid being stalled out.  We should force Speaker Boehner to act on his pledge that he “look[s] forward to working to resolve this issue [FOIA reform] early in the new Congress.”  FOIA champions Senators Leahy, Cornyn, and Grassley remain in the Senate Judiciary Committee; these senators have an impressive history of defending and working to reform FOIA, no matter which party is in the majorly.  Replacing Representative Issa on the House Oversight Committee is Jason Chaffetz (R-Ut); Democratic FOIA champion Elijah Cummings remains.  Encouragingly, Chaffetz has said he “wants to address the Freedom of Information Act and the difficulties many have in getting the executive branch to comply with FOIA requests.”  Both houses should immediately reintroduce the FOIA bill.  More than 440 members who voted for FOIA reform remain in Congress.

Second –as absurd as it sounds– open government advocates must find a way to force our representatives to actually pass the bills they vote for. If the 400-plus remaining members who voted for reform to the Freedom of Information Act truly believe in enhancing the public’s access to government information, it should be an easy feat to pass identical, or nearly identical, Freedom of Information Act reform –that is, the bill both houses just unanimously voted yes on– by Sunshine Week, March 2015.  If not, we need to force congresspeople to state the reasons why they object to our access to our own information.

2 Comments leave one →
  1. December 19, 2014 11:51 am

    Great explanation of a terrible turn of events. We should also be calling our press contacts – especially those who use FOIA or benefit from FOIA-released records – to urge them to pressure their editors and publishers to weigh in, as media organizations.

  2. December 19, 2014 4:15 pm

    I love that the threat of increasing FOIA litigation is enough to derail a bill. Let’s assume for a moment that this would happen. So what? Judge Beryl Howell addressed an argument like this last year, and her words (minus citations) are applicable here:

    The assignability of FOIA requests is also consistent with the animating principle behind the FOIA, which is “to increase the public’s access to governmental information.” Indeed, it is curious that the CIA’s declarant attempts to justify the Assignment of Rights Policy by contending that “accepting the assignment and substituting a motivated assignee for a passive requester . . . would increase [the CIA’s] exposure to litigation.” All else equal, a “motivated assignee” would actually be preferred to a “passive requester,” because the former would be more likely “to increase the public’s access to governmental information,” and thereby further the purpose of the FOIA.

    ***

    Third, and as referenced above, the CIA argues that the assignment of FOIA requests would “increase its exposure to litigation” by “substituting a motivated assignee for a passive requester.” As discussed above, to the extent that the Assignment of Rights Policy is aimed at keeping otherwise meritorious FOIA claims out of federal courts, it is at odds with the purposes of the FOIA.

    ***

    It is thus telling that the CIA discusses “an incentive . . . to litigate requests that would otherwise not be pursued” as if it were something the FOIA seeks to discourage.

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