On Tuesday, the U.S. House of Representatives will once again weigh reforming the Freedom of Information Act to improve how the most important open government law of the United States is honored.
According to government transparency advocate Lisette Garcia, an expert on FOIA law, the new FOIA bill (H.R. 653) was “heavily negotiated between both parties throughout the drafting stages.” She expects it to be considered in suspension of ordinary debate rules and fast-tracked with little opportunity for public input.
Garcia, who alerted us to the new bill text via email, said that Congressman Jason Chaffetz (R-CO) gave her an advance copy of the bill last December in exchange for her feedback as an experienced FOIA requester.
Alert readers may recall that Congress was poised to enact historic Freedom of Information Act reforms in late 2014, only to see FOIA reform die as the press looked the other way and lobbying by the financial industry scuttled it at the last minute.
That was a huge loss for the public interest and a giant missed opportunity for public engagement around public access to public information.
Despite FOIA reform passing both Houses of Congress unanimously, the government transparency bill expired when federal agencies, including the Justice Department and the Federal Trade Agency, reportedly lobbied against the bill when it came before the House one final time and Speaker of the House John Boehner failed to put it on the legislative calendar.
The fiasco led press freedom advocates to criticize the Obama administration for failing to support making the same FOIA policy the President introduced and endorsed publicly in 2009 the law of the land.
Over the past several years, the Obama administration has committed and recommitted to modernizing how the federal government complies with the Freedom of Information Act for years.
On the one hand, there has been progress on a new website for requests and pilot projects for ‘release to one, release to all’ policies. The administration has also released vast amounts of public data online and used technology to inform and engage the public in governance and science in unprecedented ways, from crowdsourcing and challenges to social media.
On the other, there’s a gap between what the Obama administration says about open government and how it follows through when informed members of the public ask tough questions.
The “presumption of openness” presented with such hope on the first day of President Barack Obama’s presidency in 2009 hasn’t led to the change that the public wished to see in 2016.
FOIA reform may face higher barriers to passing in the 114th Congress, but it’s more sorely needed than ever.
Here’s one way to give it some more attention. At the end of 2015, the Obama administration outlined 45 different ways it’s working to make the U.S. government more open and accountable to the people it serves.
If the White House intends to fulfill the open government promise it made in January 2009, President Barack Obama could start by adding a single sentence endorsing FOIA reform in Congress during his final State of the Union speech tomorrow night, making the “presumption of openness” law.
If President Obama still believes that he has led the “most transparent administration in history,” maybe it’s time to ask the public and Congress to make his public policies permanent so that the next inhabitant of the People’s House cannot easily reverse them.
- Yes, FOIA is still broken, but for more reasons than you might think.
The Washington Times and The Blaze reported on today’s House Oversight Committee’s report, which lambasted the Obama administration’s handling of FOIA requests as “hobbled” and “broken.”What both publications left out — along with Congressman Issa, who wrote an op-ed in the Daily Caller about the FOIA Oversight and Implementation Act he sponsored — is important. As the Wall Street Journal reported in 2013 and the New York Times reported today, the private sector is a huge user of this open government law. Consulting groups and hedge funds use FOIA requests for business intelligence.
In fact, according to a 2015 study by Margaret B. Kwoka, an assistant professor at the University of Denver Sturm College of Law, cited by the Times, commercial resellers of data make the majority of FOIA requests at some federal agencies: 75%+ at the FDA, 9% at the Defense Logistics Agency.
In theory, a “release to one, release to all” policy would address this issue, if FOIA officers and agencies worked to reconcile it with complementary efforts to proactive disclosure of open data online across the federal government — and the Department of Justice was willing to hold agencies and itself to a higher standard.
- This reform could weaken the current Freedom of Information Act.
While they’re supportive of the core reforms that are preserved from the original FOIA Reform Act, open government advocates are decrying the addition of new language that would exempt the U.S. intelligence community from certain provisions of the Freedom of Information Act, including the consultation process that the bill would create.
“The changes to the House FOIA bill, added as a result of a last-minute demand of HPSCI, is a pattern that is becoming all too familiar and objectionable” said Patrice McDermott, the executive director of OpenTheGovernment.org, in a statement.
“The efforts to exempt the Intelligence Community are not acceptable. They are particularly offensive in this bill intended to promote openness across the federal government.”
- FOIA reform passed the House but the bill is not law yet.
The Hill reported that the House is poised to approve the FOIA reform bill on Tuesday, Jan.12.
Now that the House has passed FOIA reform (again), it’s on to the Senate.