June 10, 2013

Three Ways to Strengthen FOIA

By Daniel Schuman

TransparencyIn late March, new FOIA legislation worked its way through the House Oversight and Government Reform Committee that contains the potential for real reform.  The FOIA Oversight and Implementation Act of 2013 earned bipartisan support for its efforts to strengthen the office of the FOIA Ombudsman, support the continued development of a centralized FOIA submission and tracking system, and codify a presumption in favor of disclosure.  While these are useful steps, as we wrote in a letter to the House Oversight Committee in March, “these changes alone would not significantly facilitate public access to government information.”  Simply put, the legislation does not yet address some of the most serious FOIA abuses.

It is not often there’s a real opportunity to strengthen FOIA in a meaningful way.  We believe the place to start is by addressing the government’s overbroad and unrelenting assertion of the “deliberative process” privilege.  The public’s right to know suffers mightily every time it is asserted.  In addition, there also should be better public notice of congressional efforts to add loopholes to FOIA, and the government should assemble a FOIA advisory committee composed of non-governmental experts.  These changes, in concert with those already proposed, would make the FOIA Oversight and Implementation Act more meaningful.

The Public’s Right to Know “Why”

Often times, FOIA requests are denied when the government asserts that information is covered by the “deliberative process” privilege embodied in FOIA exemption 5.  In essence, the government is claiming the information sought was generated as part of the government’s efforts to think through a problem before reaching a decision.  There are two major problems with the exemption as it currently stands.

Firstly, the exemption is used when releasing information would be embarrassing to the government but the information is not actually part of the thinking-through process.  This expansive interpretation plainly contradicts the law, but a requester must wait a long time and spend a lot of money to vindicate their right to access the information through the courts.

Secondly, and more importantly, FOIA’s deliberative process privilege does not require agencies or the courts to weight the public’s right to know.  Democratic theory requires government to operate with the consent of the governed, a consent that cannot be sustained when crucial information never makes it out into the daylight.  More prosaically, withheld documents often explain why and how a decision was reached.  By default, the public should be given this information unless there is a very good reason to withhold it. President Obama’s Day 1 memo makes this point succinctly: “All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.” 

The reason most frequently advanced in opposition to public access is that the exemption ensures that advisors give government officials their best advice without fear of how it will look to the public.  As a matter of public policy, however, often times you want government officials to think about democratic accountability when making decisions, particularly when it is a matter of great importance.  Oftentimes, a disclosure denial is a smokescreen for something else. There’s an analog from civil litigation: In private lawsuits against the government, judges may require the government to divulge information when the information cannot be obtained in any other way and government misconduct is the subject of the lawsuit.  The deliberative process privilege gives way to a litigant’s showing of a need for information.

We believe that FOIA’s exemption 5, which instantiates the deliberative process privilege, should include a similar balancing test.  Agencies should be required to weigh the public’s right to know against the protecting deliberative process, with the understanding that when in doubt, openness prevails.  That determination should be reviewable by a federal judge.

In addition, the assertions of deliberative process privilege should expire over time.  Ten years after a decision has been made, for example, the administration and many key government staffers have long since departed.  At that time, there’s not much of a deliberative process to protect, and the public right’s to know surely outweighs any remaining interest in confidentiality.  The Presidential Records Act provides an analogous sunset where public access to presidential records can be withheld for no more than twelve years.  FOIA could benefit from this example.

Give Fair Warning of Efforts to Add FOIA Loopholes

Oftentimes members of Congress introduce legislation that pokes a hole in FOIA.  Sometimes these loopholes are reasonable, other times they are not.  It is fairly common, however, that the legislative language is overbroad and would exempt much more information from disclosure than needs to be withheld to serve a legitimate purpose.

When these overbroad loopholes can be identified, it’s often fairly easy to identify a fix.  The problem arises when Congress and the public do not know when exemptions are being proposed.  Sometimes the legislative language clearly states that it is trying to amend the part of the code that contains FOIA, 5 USC 552.  Those amendments can now be identified using clever technological tools like Scout.  Oftentimes, however, the legislative language is obscure, using phrases like “Notwithstanding any other provision of law ….”  Those loopholes are just about impossible to isolate because that phrase is used so often.  You have to know what you’re looking for.

The Judiciary committees have a lot of experience in crafting tight language around FOIA, which falls under their jurisdiction.  The committees have strong institutional knowledge, and they regularly tap reporters, academics, advocates, and other members of the public for their experiences with filing FOIA requests.  However, exceptions to FOIA can appear in legislation reviewed by any congressional committee, and the Judiciary committee is not necessarily involved.  In those circumstances, the broader community is unaware that an amendment is being considered and the reviewing committee may lack the necessary expertise.

Congress needs to do more to empower its members and the public to weigh in when loopholes are proposed to FOIA.  This could be accomplished in a number of ways.  It could require that specific legislative language be used every time a FOIA amendment is proposed, so that the proposals can be found through technological means.  It could require that legislation containing FOIA amendments also be referred to the Judiciary committees for review.  It could require a public document to accompany all legislation that would create a loophole to FOIA.  Whatever the appropriate approach, Congress needs to do more to identify proposed and current exemptions to FOIA so the public may weigh in.

Invite FOIA Experts to Join Federal Advisory Committee

Federal regulation is where the rubber meets the road on implementing FOIA.  Agencies, which are responsible for issues regulations, often have advisory committees on topics where the agency would benefit from regular interaction with a community of experts on a complicated issue.  There are more than 1,000 federal advisory committees, which hold public meetings, are required to have a “balanced” membership representing diverse interests, and serve as a conduit between the public and the government.  Alas, there’s no federal advisory committee for FOIA.  There should be.

Federal advisory committees can be created by federal law or by a federal agency.  Considering the role of the Justice Department and the National Archives in overseeing FOIA, it probably makes sense to have Congress create the advisory committee, give NARA primary responsibility, but make sure that DOJ is connected as well.  It should have a broad mandate: to initiate recommendations and provide advice on rulemakings, guidance, and other relevant activities.

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