Today the House of Representatives passed the FOIA Improvement Act of 2016, which passed the Senate in March; President Obama indicated through a spokesman he will sign the measure. [Update: President Obama signed it into law on June 30.] The legislation is the second major transparency bill of the Obama administration — the other is the DATA Act, a federal spending transparency bill. The legislation will become law before July 4th, 2016, the 50th anniversary of the enactment of the original Freedom of Information Act.
The FOIA bill has four major provisions. First, it writes into law a presumption of openness, so future Dick Cheney’s cannot use implausible excuses to withhold information. Second, the bill establishes a 25-year sunset on the administration’s ability to invoke the “deliberative process” privilege to withhold information. Third, it strengthens the FOIA ombudsman. Finally, it pushes FOIA into the digital age through the creation of an online portal.
The original legislation introduced in the House and Senate both went significantly further. But as the administration helped kill the legislation last Congress and conducted a covert campaign against the legislation this time around, the bill that passed the Senate probably is as strong as possible under the circumstances.
Ironically, the administration privately undermined both measures before agreeing to watered-down versions, both bills codified or expanded upon measures the president had publicly championed, and much of the heavy lifting was done by the Republican-controlled House Committee on Oversight and Government Reform.
House Oversight Committee Chairman Jason Chaffetz (R-UT) deserves significant credit for bringing this bill to the finish line. While the Chairman had his own version of the FOIA bill that included a number of new reforms, he picked up the torch on the Senate FOIA bill, which itself reflected the work of the prior House Committee chairman, and pushed it through. Often times in Congress, good legislation dies when leadership turns over, but Rep. Chaffetz made sure to lock in the reforms embodied in that legislation while also pursuing new efforts to go even further on government openness and transparency.
In addition to Rep. Chaffetz, significant credit is due to Rep. Darrell Issa (R-CA), who introduced the legislation in the House last Congress alongside Rep. Elijah Cummings (D-MD), and Senators Chuck Grassley (R-IA), Patrick Leahy (D-VT), and John Cornyn (R-TX), who made the bill happen in the Senate.
After this legislation becomes law, it is my hope that the House Oversight and Government Reform Committee and Senate Judiciary Committee continue to work together to push additional reform to FOIA and federal transparency. In particular, the administration’s abusive claims around privileged information begs for resolution in a more equitable way. In addition, with the Justice Department’s key role in undermining the FOIA bill and promulgating regressive FOIA regulations, it is a worthy target of granular congressional oversight. But for now, it is important to celebrate a hard-fought victory.
— Written by Daniel Schuman