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FreedomInfo: “FOIA Bill Post Mortem: Mysteries, Multiple Causes”

December 24, 2014

Ed. note: This article has been crossposted from FreedomInfo.org 

By Toby McIntosh

"My job tonight is to say thank you, and Merry Christmas.”... and kill the FOIA bill which has 410 House votes and Passed the Senate with Unanimous Consent.

“My job tonight is to say thank you, and Merry Christmas”… and kill the FOIA bill which has 410 House votes and Passed the Senate with Unanimous Consent.

The final days of modest legislation to reform the Freedom of Information Act were surprisingly dramatic.

Still lingering as a key mystery is why House Speaker John Boehner refused to bring the bill up, sealing its fate in 2014.

Passage was widely considered “a no brainer,” as one supporter put it. Unusual bipartisan support for FOIA reform gave supporters good reason to be optimistic.

Brought up late in the Senate session, however, the bill fell prey to numerous subterranean attacks. They came from within the government and outside it, perhaps fatally delaying passage.

The compromises made to ensure unanimous Senate passage may indicate the limits of achievable reform. The experience is sure to shape future FOIA reform efforts.

FreedomInfo.org sought to pull the puzzle pieces together by interviewing on a not-for-attribution basis more than a dozen people close to the story, including congressional aides and FOIA bill advocates.

Questions Remains 

Most of the close observers believe Boehner was influenced by banking industry lobbyists. Few accept the more mundane explanation that there just wasn’t enough time at the busy end the session.

All of those interviewed, however, including House and Senate Republican staffers, swore ignorance about why Boehner didn’t bring up the bill.

In retrospect, some wonder whether the bill’s leading sponsor, Sen. Patrick Leahy (D-Vt.), the chairman of the Judiciary Committee, also should shoulder some of the blame for not getting the bill through.

After the House passed its bill in February, Leahy took several months to write his version, which was introduced in June but wasn’t passed by committee until Nov 20 and then by the Senate Dec. 8 as adjournment approached.

In final weeks, with time increasing their leverage, a handful of senators threatened to hold the bill up, causing Leahy to make compromises in a quest for unanimous backing.

Stealth Attacks

The Obama administration officially took no position on the bill, according a Justice Department spokesman, but unofficially DOJ and other agencies worked against the bill.

An early warning came in March when Cass Sunstein, the administration’s former regulatory czar now a professor, criticized the bill.

The Justice Department, with a leading role on FOIA policy, circulated its doubts orally to legislators, sources said. DOJ would not comment for this story.

The Federal Trade Commission also was working actively against on the bill, and also was unwilling to comment.

FreedomInfo.org has learned that White House Counsel W. Neil Eggleston called Leahy with concerns about the bill.

It was a “Whac-a-Mole” environment, said several persons closely involved in pushing the bill.

Optimism for Future

Boehner and other key legislators support passing FOIA reform early in the next Congress, making supporters optimistic.

The central feature of the both the House bill and the ultimate Senate bill is codification of the presumption that requests for documents will be granted absent “foreseeable harm.” The language in the two bills differed subtly.

One bright spot during the Senate bill’s consideration was willingness of the House bill’s bipartisan co-sponsors to accept the Senate bill, potentially smoothing the bill’s path to the president’s desk.

The bill contained a variety of other provisions. To fight FOIA delays, the bills would keep agencies from charging fees if they respond past the legal deadline. Also significant are provisions to strengthen the FOIA ombudsman and to create a council of FOIA officials. The bill would mandate creation of a unified FOIA request website.

The recent history of the bill, despite the lingering mysteries, provides some definite clues as to what the future bill will look like, and where future landmines are laid.

Early Compromises in Senate Committee

The December endgame in the Senate was fast and furious, but it had taken months to get there.

After the unusual 410-0 House approval of its bill (HR 1211) in February, Leahy wanted to produce his own similar, but better bill.

Leahy and a key Republican ally, John Cornyn (R-Texas), introduced their bill on June 24. (S 2520 as first introduced.) Their partnership was heralded as a good omen for their bill, which differed in one important way from the House bill.

The key addition in the Senate bill was a provision to tackle government “overuse” of the exemption 5, providing for protection of the deliberative process. FOIA activists documented an increase in its use and criticized its misuse, such as to protect an official history of the Bay of Pigs.

The coalition of 70 groups supported the bill, spearheaded by Open The Government, and including groups from the left and the right.

Drafting the bill took longer than expected for reasons possibly including personnel changes on Leahy’s staff. With goal of getting wide support, Senate staffers “consulted with a wide variety of people,” said one person who followed the process closely. “They really put a lot of blood sweat and tears into this.” But another person close to the process saw “dilly-dallying.”

Hopes for committee action before the summer break didn’t materialize. The bill was put on the Sept. 18 committee agenda but got delayed, as it did on Nov. 13. Unanimous committee action occurred Nov. 20. (See previous FreedomInfo.org report.)

Feinstein Pushes Out Balancing Test

In the pre-markup weeks, objection to the bill came from the staff of Sen. Diane Feinstein (D-Calif.), a challenge that the bill’s advocates played down in public although it involved a provision many considered the most ambitious in the bill.

Feinstein’s objections concerned the proposed “public interest balancing test” for exemption 5, the deliberative process exemption that also covers attorney-client privilege.

In the Leahy/Cornyn bill, denials regarding the deliberative process privilege or attorney work-product privilege would be permitted unless “outweighed by a pubic interest in disclosure.” A slightly stronger “compelling public interest” standard was set for “attorney–client privilege.”

Other Democratic senators also were in Feinstein’s camp: Sens. Charles Schumer (D-NY), Amy Klobuchar (D-Minn) and Richard Blumenthal (D-Conn.). Their concerns were being fueled by the Justice Department, sources said.

The critics said the bill would undercut protections for the attorney-client privilege, a point that seemed to resonate with attorneys on Senate staffs. “Even at a staff level there was a lot of unease about bringing the balance test to a member,” one person said.

After attempts at rewriting it, the provision was dropped. For some of the bill’s supporters, the best part of the Senate bill was gone, but they argued that the foreseeable harm test would help limit abuse of exemption 5.

Plus, another welcomed provision would make the deliberative process exemption inapplicable to records older that 25 years. In addition, a study on the use of the deliberative process exemption would be commissioner by the Government Accountability Office (GAO).

Several other changes were made to the original bill in preparation for committee markup.

A prohibition on charging fees when an agency delays the handling of a request got amended slightly so as not to apply to very large requests, more than 50,000 responsive records.

In addition, the GAO would be required to conduct audits of the FOIA activities of three or more agencies every two years. Another GAO report was ordered, on backlog reduction methods.

The manager’s amendment containing the changes was approved without dissent by the committee on Nov. 20.

Rockefeller Challenges

After the meeting, an FTC staff member approached a Leahy staffer. The agency had concerns about the bill, she said, and would be taking them to the Commerce Committee.

It was an early warning about an objection that Commerce Chairman Jay Rockefeller (D-W. Va.) would lodge, but not until the last minute, several weeks later.

He and a few other senators indicated their concerns when the S 2520 was going through the “hotline” procedure, used right before a bill is brought up on the floor to learn about impending opposition.

The “hold” placed on the bill by Rockefeller concerned the central provision in the bill, which would require agencies to release information unless “foreseeable harm” would result. The provision was drawn from DOJ guidance that was supposed to be applied, but many argued was not being followed.

When news of Rockefeller’s objection hit Dec. 4, supporters of the bill launched a Twitter campaign while negotiations got under way.

As the outcry grew, Rockefeller explained his thinking, in statement, predicting that the foreseeable harm standard would create an “unintended consequence” of impairing enforcement of federal laws protecting consumers.

His position was that corporate defendants “could inundate” agencies with requests and would generate “needless litigation” that would drain agency resources and chill internal agency deliberations.

With time running out on the session, Rockefeller’s staff took more than a day to engage with the bill’s supporters in negotiations. Involved in the talks was a staff person from the FTC, on temporary assignment with the committee.

The commission did not take an official position by vote on the bill, but its congressional affairs staff worked on the issue. The FTC declined to comment or to grant interviews.

“Agencies don’t like changes to FOIA, they are concerned about the administrative burden,” one bill supporter observed, “It was not unusual that they would be raising concerns.”

Rockefeller’s concerns were overstated, the bill’s supporters contended. In the real world, they said, the subjects of enforcement actions prefer not to file FOIA action that will annoy the enforcers. Besides, FOIA requests can take years, especially with an unsympathetic agency, so any information will come out too late for litigation. Furthermore, the discovery process is a more powerful tool for defendants than FOIA.

Negotiations with Rockefeller’s staff resulted in committee “report language” – a non-binding description of Congress’s intent – that was a fig leaf. It applying a higher standard for judicial review but only to “current law enforcement actions.”

The compromise language in the committee report says:

It is the intent of Congress that agency decisions to withhold information relating to current law enforcement actions under the foreseeable harm standard be subject to judicial review for abuse of discretion.

Asked about what happened, Rockefeller said, “It’s sort of the internal workings of the Senate,” according to a Politico report.

One last-minute crisis had been averted, but others were under way. A couple were easily resolved.

Sen. Bob Corker (R-Tenn.) wanted time to look at the modifications made in the Senate Judiciary Committee, which approved the bill unanimously Nov. 20, but gave his approval.

Sen. Tom Coburn (R-Okla.) C was placing holds on many bills he felt were not paid for, but the House FOIA bill was estimated to cost only $5 million annually, and the Senate bill likely less.

Coburn “placed an informational hold on the bill because it had not been analyzed by the Congressional Budget Office,” a spokesperson said. “However, his concerns regarding the costs were addressed and he does not object to its passage.”

Phantom Business Attacks

More troublesome were objections from Senate Banking Committee Chairman Tim Johnson (D-SD), who eventually obtained reassurances from Leahy.

Johnson’s concerns appeared to stem from lobbying by unnamed banking interests worried that the bill could undercut the statutory exemptions protecting government information about them(See FreedomInfo.org article.) Even weeks later, none of those interviewed, staffers and outside groups, could identify the banking groups involved. No banking groups contacted indicated involvement.

The bill supporters and other FOIA experts considered the banking industry fears to be much exaggerated. Not only are they amply protected in the law already, but also courts are very deferential in this area, they said. A recent favorable ruling in this area example involved the Securities and Commission (Public Investors Arbitration Bar Association v. Securities and Exchange Commission, No. 13-5137, U.S. Court of Appeals for the District of Columbia Circuit, Nov. 14).

On top of that, the Dodd-Frank law imposes additional protections against harmful disclosures. Overall, as one expert put it, “The bank regulatory agencies have always gotten a free ride under FOIA.”

Johnson joined the rest of his Senate colleagues in voting for the bill after being given assurances.

A section was inserted into the committee report on the bill and a scripted dialogue on the floor was held between Leahy to provide promises that the bill’s reforms would not alter the primary exemption protecting government records about financial institutions. (See FreedomInfo.org article.) Leahy said the amendments “are not intended to undermine the broad protection in Exemption 8 or to undermine the integrity of the supervisory examination process.”

The Senate bill passed unanimously Dec. 8 on a (See FreedomInfo.org report.)

Tight Time Frame

The Senate bill was sent to the House, where the House bill’s sponsors, Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) and ranking member Elijah E. Cummings (D-Md.) issued a joint statement urging a vote. Issa “made calls” to encourage House action, sources said, but not much information was available about whom he called. Nor would and Issa staffer say if he spoke with Boehner.

Some skeptics wonder if Issa was distracted. I don’t know that he weighed in early enough with the right people,” commented one person.

Minority Leader Nancy Pelosi (D-Calif.) indicated to Boehner’s office that the Democratic side had cleared the bill, sources said. It’s unknown whether Leahy called Boehner.

If specific concerns came from the banking industry, they were not conveyed to staffers working on the bill. Several sources said that House Financial Services Committee staffers were unaware of any industry objections.

Justice Department Accused

The Justice Department was fingered as the culprit by Josh Hicks, in a Washington Post blog post.According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the “forseeable harm” requirement as the basis for frequent lawsuits.”

DOJ, according to some congressional staffers, favored the House version of the presumption of openness standard, if any, but it’s unclear if this was raised with House leaders.

Both versions were based on President Obama’s 2009 memo as defined by Attorney General Eric Holder in a March 19, 2009, memo saying “… the 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.”

The House bill (HR 1211) adjusted the language slightly, to read:

An agency may not withhold information under this subsection unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.

The Senate bill tracked the Holder memo, but also contains a bit more, making it “more robust” in the words of one supporter. The added provision says officials “may not withhold information requested under this section merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption described in subsection or withhold information requested under this section merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.”

Unrelated to this, Justice also objected to the bill on constitutional grounds, staffers said, to a provision that would have allowed the ombudsman to send recommendations directly to Congress, instead of routing them for approval through the Office of Management and Budget, like other agencies. This contention didn’t impress Hill staffers.

Repeated FreedomInfo.org requests for interview with Melanie Ann Pustay, the Director of the DOJ Office of Information Policy, were denied.

Boehner “No Knowledge”

Boehner on Dec. 11 gave no encouragement to FOIA reform supporters.

“I have no knowledge of what the plan is for that bill,” Boehner said when asked about it at a late-morning news conference.

The Speaker was focused on the creation of the spending package for the government, whose fate was uncertain when he spoke. (See FreedomInfo.org report.) A spending bill managed to pass later that day. A few bills naming post offices also were passed, but not much else and the House adjourned at 9:40 p.m. Dec. 11.

Whether Obama administration opposition would sway Boehner is open to doubt, those interviewed agreed.

Throughout the process, advocates for the bill deliberately avoided drawing attention to DOJ’s position, fearing that doing so would make the bill partisan; even turning it into an anti-Obama bill that the president would have to sign.

“I do not think DOJ’s opposition hurt us one bit when it came to the House,” one supporter of the bill said.

More likely, many believe, is that banking industry concerns were in play. “Everybody assumed that problem had been solved,” one observer said, referring to the handling on Johnson’s concerns. But possibly not.

The sympathetic view to Boehner is that any tinge of controversy. One aide suggested the Speaker didn’t want to do anything to jeopardize the difficult vote-gathering for the troubled spending bill. Another called Boehner’s move “standard operating procedure” in the face of rumblings of controversy.

Leahy blamed the House speaker, tweeting, “And Boehner kills #FOIA improvements.”

Last Gasp

A final maneuver was still possible, passage of the House bill by the Senate, but this never happened.

Issa publicly suggested this course, annoying the bill’s supporters who saw it as partisan face-saving. Also most supporters much preferred the Senate bill.

Any senator could have blocked this gambit, and apparently such opposition existed. Democrats hint that a Republican would have objected. Republicans suggest a Democrat might have done so. Possibly Rockefeller and Johnson might have felt that the House bill, while largely similar to the Senate bill, did not come with the assurances they had won on the Senate side.

Looking Ahead

FOIA reform supporters said they have high hopes for passage of a bill in 2015.

The loss of the public interest balancing test provision grates on some, but many supporters see the remaining provisions as valuable.

The terms of a potentially passable bill may have been honed through the process. There still seems to be broad support in Congress for such FOIA reform.

The episode was a reminder to some that politicians support transparency in public while undercutting it in private.

“Many people –in Congress, in the agencies, in the White House, in the media– proclaim they believe in open government, but don’t really,” wrote Nate Jones in Unredacted, a blog at the National Security Archive (which also publishes FreedomInfo.org.)

Supporters also said it was time to reconsider their tactics. “There will be a lot of soul searching,” said one advocate.

On Capitol Hill, here will be congressional personnel shifts of importance, but support for FOIA reform may remain intact among the new committee leaders.

Sen. Grassley (R-Iowa), a bill co-sponsor, will be the new chairman of the Judiciary Committee in a Republican Senate. In the House, Rep. Jason Chaffetz (R-Utah) will replace Issa as chairman of the Oversight Committee and has already named FOIA as a topic he’d like to address.

One hopeful supporter said, “This can be passed and president Obama can have a wonderful signing ceremony during sunshine week [in March].”

 

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