U.S. House unanimously votes in favor of FOIA reform and a more open government

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Earlier tonight, The United States House of Representatives voted 410-0 to pass the FOIA Oversight and Implementation Act. If the FOIA Act passes through the Senate, the bill would represent the most important update to United States access to information laws in generations.

“Transparency in government is a critical part of restoring trust and the House will continue to work to make government more transparent and accessible to all Americans,” said House Majority Leader Eric Cantor (R-VI). “By expanding the FOIA process online, the FOIA Oversight and Implementation Act creates greater transparency and continues our open government efforts in the House.”

The FOIA Oversight and Implementation Act (FOIA), ‪‎H.R.1211‬, is one of the best opportunities to institutionalize open government in the 113th Congress, along with the DATA Act, which passed the House of Representatives 388-1 last November.

The FOIA reform bill now moves to the Senate, which passed unanimous FOIA reform legislation in the last Congress.

As Nate Jones detailed at the National Security Archive, the Senate’s own legislative effort to reform FOIA, the so-called the “Faster FOIA Act” (S.627, S. 1466), was not picked up by the House: the open government bill was hijacked in service of a 2011 budget deal, where the FOIA provisions in it ultimately met an untimely end. Chairman Darrell Issa (R-CA.), Ranking Member Elijah Cummings (D-MD), and Representative Mike Quigley (D-IL) chose to draft their own bill instead of taking that bill up again.

Open government advocates applauded the unanimous passage of the FOIA Act, although there are some caveats about its provisions for the Senate to consider.

“This vote shows strong congressional support for government transparency and the Freedom of Information Act,” said Sean Moulton, Director of Open Government Policy at the Center for Effective Government, in a statement:

Since its original passage nearly 50 years ago, FOIA has been a cornerstone of the public’s right to know. By modernizing FOIA, H.R. 1211 would improve Americans’ ability to access public information and strengthen our democracy.

We thank the chair and ranking member of the House Committee on Oversight and Government Reform, Reps. Darrell Issa (R-CA) and Elijah Cummings (D-MD), who worked with the open government community to develop this legislation in a bipartisan fashion. We urge the Senate to advance legislation addressing these issues and other pressing FOIA reforms, including the need to rein in secrecy claims under Exemption 5, which restrict access to important information about government operations.

Access to public information is crucial to our democracy and the government’s effectiveness. It allows Americans to actively engage in policymaking in a thoughtful, informed manner and to hold public officials accountable for decisions that impact us all.

The bill represents important incremental, improvements to the FOIA process, but “it doesn’t address some fundamental shortfalls in the way that the FOIA is implemented and viewed within the Federal government,” wrote Matt Rumsey, policy analyst at the Sunlight Foundation:

… A “presumption of openness” and improved online infrastructure are important, but the bigger challenge will be getting agencies to change their posture away from one of non-disclosure and often aggressive litigation that is opposed to openness. … It clearly shows that ensuring public access to government information is not a partisan issue, or even one that should divide the branches of government. We hope to see the Senate take up legislation in the near future so that both chambers can work together to send a strong FOIA reform bill to President Obama’s desk for him to sign.

Passage of the House bill is a good first step but only a first step, wrote Anne Weismann, chief counsel of Citizens for Responsibility and Ethics in Washington:

Without a doubt these are needed reforms. As CREW has long advocated, however, meaningful FOIA reform must include changes in the FOIA’s exemptions to make the statute work as Congress intended.  All too often agencies hide behind Exemption 5 and its protection for privileged material to bar public access to documents that would reveal the rationale behind key government decisions.  For example, the Department of Justice denies every request for a legal opinion issued by DOJ’s Office of Legal Counsel that determines what a law means and what conduct it permits, claiming to reveal these opinions would harm the agency’s deliberative process.  This has led to the creation of a body of secret law — precisely what Congress sought to prevent when it enacted the FOIA.

To address this serious problem, CREW has advocated adding a balancing test to Exemption 5 that would require the agency and any reviewing court to balance the government’s claimed need for secrecy against the public interest in disclosure.  Other needed reforms include a requirement that agencies post online all documents disclosed under the FOIA.  The House bill, however, does not incorporate any of these reforms.

This post has been updated with additional statements over time.