Multiple sources have confirmed that retiring U.S. Senator Jay Rockefeller (D-WV) has put a hold on the FOIA Improvement Act, the bill that would enact historic reforms to the Freedom of Information Act, the core open government law in the United States of America that gives every citizen the right to information about their government. While the senator may wish to tout his legacy of service online, if he does not release his hold by Monday, the bill will be dead, and the responsibility for that failure will lie squarely upon his shoulders.
Without naming Senator Rockefeller specifically, Senator Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, issued the following statement into the Congressional Record last night:
The Freedom of Information Act is one of our Nation’s most important laws. James Madison said the people “must arm themselves with the power knowledge gives.” For nearly 50 years, FOIA has given Americans a way to access government information ensuring their right to know what their government doing. The FOIA Improvement Act advances this fundamental democratic principle. It is why I urge all Senators to support the FOIA Improvement Act of 2014, without delay. This legislation builds on what the President laid out in his historic executive order in 2009 by requiring Federal agencies to adopt a “Presumption of Openness” when considering the release of government information under FOIA. Prioritizing the people’s interest in what their government is doing, our bill will reduce the overuse of exemptions to withhold information where there is no foreseeable harm. It will make information available for public inspection and frequently requested documents available online. It will provide the Office of Government Information Services (OGIS), with additional independence and authority to carry out its work. I believe this legislation reaffirms the fundamental premise of FOIA, that government information belongs to all Americans. Supporting these commonsense reforms will help open the government to the 300 million Americans it serves. The bill is supported by more than 70 public interest groups that advocate for government transparency. The Sunshine in Government Initiative, said the Leahy-Cornyn bill “strengthens government transparency by limiting the ability of agencies to hide decades old documents from the public.” At the Judiciary Committee’s business meeting to consider this legislation, which was reported to the full Senate with unanimous support, Ranking Member Grassley said the FOIA Improvement Act “opens wide the curtains and provides more sunlight on the Federal government.” Senator Cornyn, my partner for many years on government transparency, noted our bipartisan efforts “to open up the government and make it more consumer and customer friendly.” I thank both Senators for their work on this legislation. We often talk about the need for government transparency, and many also note how rare it is that Democrats and Republicans can come together on any legislation. We have accomplished both with the FOIA Improvement Act. It was drafted in a bipartisan fashion after a long and thoughtful process of consultation. This week, we can pass this bill in the Senate and send it over to the House, where I am confident that it will pass, and send it to the President to sign before the end of the year. There is no reason to delay this legislation, which has broad support from a range of stakeholders, costs very little to implement and will improve access to government for all Americans. I urge the Senate to pass the FOIA Improvement Act now, without delay.
Respectfully, Mr. Rockefeller, to opine thus and then block a bipartisan bill that passed the U.S. House of Representatives unanimously, 410-0, before it was amended, introduced by Senator Leahy and Senator John Cornyn (R-TX), and then unanimously passed by the Senate Judiciary Committee is nothing less than rank hypocrisy.
It’s hard to believe that Senator Rockefeller wants to be known for blocking open government reform at a time of historic lows in trust in government and abysmal public perceptions of the U.S, but that’s exactly what will happen if he doesn’t release this hold.
Update: on Friday night, Senator Rockefeller made the following statement on the FOIA Improvement Act, confirming the hold:
“I have a long record of support for open government and the FOIA process. I am concerned that provisions in this bill will have the unintended consequence of harming our ability to enforce the many important federal laws that protect American consumers from financial fraud and other abuses. According to experts across the federal government, these provisions would make it harder for federal agency attorneys to prepare their cases, and they would potentially give defendants new ways to obstruct and delay investigations into their conduct. I hope there is a way to address these concerns and pass the bill.”
In response, David Plazas, editorial board chair of the Tennessean, maintained that Senator Rockefeller should lift his hold.
“The bill specifically states that all records are presumed to be open unless there’s a law that would exempt it,” he wrote. “Clearly, the concerns raised in the senator’s statement should be assuaged. That House members voted unanimously for the companion bill and that a bipartisan group of senators are backing it has us questioning the real motives behind this hold.”
So do I, for the same reason. For 509 other members of Congress, these concerns were not enough to halt progress of much-needed reforms. It’s not clear which provisions the Senator is referring to, or what experts across the federal government he is referring to, because this short statement, issued at 6:30 PM on Friday after a full day of advocates, journalists and citizens asking for an explanation, doesn’t explain.
Currently, these same federal agencies are failing to comply with FOIA requests, overusing exemptions and delaying responses for years. Vague concerns about delaying investigations or harming enforcement of financial fraud, perhaps referring to actions by federal attorneys at the Federal Trade Commission or Securities and Exchange Commission, don’t hold water when balanced against the documented resistance to the public’s right to know what’s being done in their name. Raising these issues at this point in the legislative calendar very well may scuttle the bill, which would still need to go back to the House and then to the White House. If that’s the outcome, Senator Rockefeller’s “long record of support for open government and the FOIA process” will be forever cast into shadow.
Patrice McDermott, executive director of OpenTheGovernment.org, made the following statement:
“We encourage Senator Rockefeller to reconsider his hold on the bipartisan FOIA Improvement Act, S. 2520, and release the bill as soon as possible. The benefits of this critical reform bill far outweigh any nebulous concerns about unintended consequences, all of which can be addressed by the Senate as they pass the bill. S. 2520 was passed unanimously by the Judiciary Committee and is set to be taken up by the House as soon as it clears the Senate. It is also widely supported by a range of groups that cross the political spectrum and represent a wide range of interests. Senator Rockefeller shuld not remain the sole holdout that stops our ability to make the federal government more open and accountable.”
Update: On Friday, The Hill (accurately!) reported that Senator Rockefeller is being blamed for blocking the Freedom of Information reform bill. Roll Call covered the fact that Senator Rockefeller opposes the FOIA bill, advancing the story in reporting that his objections were as a surprise to Senator Leahy:
“Yesterday was the first we have heard of these concerns,” a Leahy aide said. “The FOIA Improvement Act, which was introduced in June, was approved unanimously by the Judiciary Committee on November 20. It has the support of more than 70 government transparency groups and is the result of months of consultation with the administration and a wide range of stakeholders.”
If Senator Rockefeller wanted FOIA reform to address his concerns, why didn’t he raise them earlier? As always, apply Occam’s Razor: the most likely explanation is that he knew putting a hold on it this late in the legislative calendar would keep it from passing. What might motivate that action?
As reporter C.J. Ciaramella noted in his FOIA newsletter, FreedomInfo.org reported that Senator Rockefeller’s “doubts were identified by one bill supporter as being stimulated by the Federal Trade Commission, an independent agency. An advocate for the bill said the FTC was concerned about the administrative burden and judicial review of the foreseeable harm standard.”
The emerging consensus among the open government advocates in DC that I’ve talked to over the past 24 hours is that the FTC was actively lobbying against this bill, and appears to have found a receptive ear. Neither the FTC or Rockefeller’s is taking questions. As Ciaramella ironically observed, “it’s pretty cool that the federal agency and U.S. Senator who are single-handedly holding up a transparency bill that has the support of 99 other Senators won’t answer questions about it.”
Update: Josh Gerstein, writing about the Senate standoff over the FOIA bill, reported more on the concerns that led Senator Rockefeller to put the hold on it:
…sources said the agencies’ concerns are that the legislation would allow companies to pierce the attorney-client and attorney work-product privileges, potentially giving targets of enforcement actions a roadmap detailing what kind or level of misconduct will trigger action and what kind is likely to be ignored.
“The bill would statutorily require government law enforcement agencies to withhold documents from a FOIA request only if they first establish that ‘the agency reasonably foresees that disclosure would harm an interest protected by’ the exemption invoked,” said a Rockefeller aide who asked not to be named. “Consequently, the bill could expose law enforcement agencies to needless litigation and drain their already limited resources in defending FOIA decisions that have long been invoked for legitimate law enforcement purposes.”
“The chairman believes this new foreseeable harm standard would likely have a chilling effect on internal communications and deliberations and could limit internal debating on law enforcement strategy, deter agency employees from providing candid advice, and lower the overall quality of the government decision-making process – all which are absolutely vital to effective law enforcement,” the aide added.
— MuckRock (@MuckRock) December 6, 2014
Tweets are almost certainly not going to be enough. If this is an issue that concerns you or (if you’re in the media, your listeners, readers or viewers, since FOIA applies to everyone), Senator Rockefeller’s office is in at 531 Hart Senate Office Building, Washington, DC 20510. The office number is (202) 224-6472, the fax is (202) 224-7665, and the email is firstname.lastname@example.org. Unfortunately, the DC phone continues to go to voicemail and there’s no guarantee that your email will be read. Concerns citizens or reporters looking for answers can also call the senator’s satellite offices in Beckley, WV (304-253-9704), Charleston (304-347-5372), Fairmont (304-367-0122), or Martinsburg (304 262-9285) or contact other U.S. Senators and ask them about the hold.)
This post has been updated over time.