Blog — Senate

February 26, 2014

The House FOIA Bill Is a Good First Step — But Only A First Step

By Anne Weismann

FOIA StacksLast night the House of Representatives took a first and important step in amending the Freedom of Information Act by approving the FOIA Oversight and Implementation Act of 2014.  Among other things, the Act strengthens the Office of Government Information Services (the FOIA ombudsman), legislatively mandates a presumption of openness in administering the FOIA, and propels agencies into the 21st Century by emphasizing increased use of new technologies.  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.

Nevertheless, in the face of the administration’s unfulfilled promise of transparency, the House bill is a welcome first step.  All eyes will now turn to the Senate, as it takes up this bill.  We urge that body to adopt the best ideas in the House FOIA Oversight Act while going even further to protect the public’s right to know.

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