Open, Accountable Government
One Step Forward, One Step Missed: House Committee Approves Limited FOIA Improvements
by Gavin Baker, 3/21/2013
On March 20, the House Committee on Oversight and Government Reform approved the FOIA Oversight and Implementation Act (H.R. 1211), sponsored by the committee's chair and ranking member, Reps. Darrell Issa (R-CA) and Elijah Cummings (D-MD). The bill would take steps to improve agency compliance with the Freedom of Information Act (FOIA) and require agencies to post more public information online. However, more reforms will be needed to address fundamental flaws in the current FOIA system.
Enabling the Public's Right to Know
FOIA is a vital tool for government transparency and accountability, as it provides the public with information necessary to understand what government is doing. Under FOIA, citizens have a right to request information from federal agencies, which agencies must promptly provide unless the information describes matters covered by one of the law's specific exemptions, such as classified national security information.
More than half a million FOIA requests are filed each year by companies, journalists, advocates, and citizens seeking answers about every kind of government program and activity – including critical topics such as food safety, compliance with environmental standards, and special interest influence in government decision making. The public can use the information to better understand government actions and participate in debates about public policy.
However – and despite recent reforms by Congress and the Obama administration – citizens continue to encounter serious problems in using FOIA to access public information. Delays in providing records remain common, agencies persistently withhold information that should be available to the public, and agencies too often wait for requests for important information that should instead be routinely disclosed.
House Bill Contains Several Encouraging Reforms
The House bill includes several helpful provisions, which would be a positive step toward comprehensively reforming the FOIA system. The bill's key reforms include:
- Requiring agencies to post more information online in advance of receiving a request, which would increase transparency and could reduce duplicative processing;
- Codifying the key standards from President Obama's FOIA memo and Attorney General Eric Holder's FOIA guidelines: that agencies must implement FOIA with a presumption of openness, may only withhold information when they can foresee actual harm from disclosure, and have an obligation to proactively disclose information rather than simply wait for requests;
- Strengthening the FOIA ombudsman, the Office of Government Information Services (OGIS), which has been a useful voice for improving agencies' FOIA practices and helpfully assisted requesters in working with agencies;
- Encouraging agencies to resolve FOIA disputes rather than force requesters into court, which would help citizens receive information without expensive and lengthy lawsuits;
- Establishing a single website for the public to submit and track requests at any agency, rather than through the more than 100 disparate systems that currently exist, which would simplify the process for requesters;
- Requiring agencies to bring their FOIA regulations up to date, which would encourage consistent implementation and reduce confusion where the statute and regulations conflict; and
- Strengthening several other oversight and compliance mechanisms, which would increase pressure on agencies to fully follow the law.
Bill Does Not Address Fundamental Problems with Current System
There are several key issues to the effective functioning of the FOIA system that are not currently addressed in the House legislation.
The bill does not currently explain how the foreseeable harm standard for withholding should be applied. Without more details, it is not clear how the provision would affect agency procedures or judges' decisions. We believe the burden should fall squarely on the agency to show that harm would result from disclosure and that judges should be able to review these decisions.
In addition, the bill does not currently address the Justice Department's litigation stance on FOIA, which has been widely identified as a key problem in enforcing compliance. The Justice Department seems willing to defend any agency action under FOIA. As a result, there is little pressure for agencies to comply with the law, and more requesters are forced to pursue expensive and lengthy lawsuits in order to enforce their rights. Congress should make clear that this is not acceptable public service and increase transparency around the Justice Department's exercise of its discretion.
Meanwhile, some of the bill's provisions move in the right direction but are too limited. OGIS's authority should be further strengthened, such as by directing other agencies to cooperate with the office's activities. The move toward more proactive disclosure should also be bolder by making the requirements more specific and enforceable.
These and other revisions would make the legislation stronger and more effective at achieving its purposes: to make FOIA work better for the public. In last week's markup, Cummings commented, "I hope that we can work together to make further improvements to the bill as it moves to the House floor." We agree and are looking to both the House and Senate to take the opportunity to craft reforms that will truly deliver the transparency that the American public deserves.