Prospects for a new round of reforms of FOIA just got brighter as Senators Patrick Leahy (D-Vt.) and John Cornyn (R-Tex.) introduced legislation to strengthen FOIA on June 24. The bill contains important, commonsense changes to strengthen transparency of the federal government. The legislation builds on the administration’s active support for agency initiatives that strengthen government transparency and includes changes that require legislation.
The bill includes several ideas for improving disclosure of information that should help the public, including those filing FOIA requests to pursue news stories. Congress last amended the FOIA in 2009 to increase the transparency of disclosure loophole laws when they are proposed in bills. In 2007, Congress enacted significant FOIA reforms that included the creation of the Office of Government Information Services (OGIS), commonly known as the FOIA Ombudsman.
The Senate bill improves on the 2007 FOIA amendments by, among other things, clarifying that OGIS may speak independently and freely about ways to improve FOIA and has the authority to write an advisory opinion at any point in a case, even if one party (such as an agency) refuses to cooperate with OGIS mediation efforts. Currently, OGIS recommendations to improve the administration of FOIA must first circulate through the interagency review process meant to ensure agency policies are consistent with administration policy. OGIS recommendations were intended to help inform policy, not the other way around.
Among other things, the bill also:
- codifies the presumption of openness that the current administration adopted when it came into office.
- Specifies that the requirement that agencies post online “frequently requested” records means any record released under FOIA and requested at least 3 times
- Allows the public interest in disclosure to be a factor in deciding whether information that would reveal internal deliberations of an agency should be disclosed.
- Encourages agencies to keep their records better organized by building in public disclosure in electronic format as a routine part of agency efforts to maintain their records.
- Improves tracking of the hundreds of secrecy statutes that serve as legal loopholes to disclosure under FOIA.
FOIA already recognizes interests in keeping information confidential, such as national security, trade secrets and personal privacy. While the executive branch can do much to strengthen FOIA, certain improvements to FOIA can only come about by an act of Congress. These commonsense approaches will strengthen FOIA and make it easier to get access to information the public deserves.
Once again we thank Senators Leahy and Cornyn for working diligently to create bipartisan solutions that move the government steps forward to making government more transparent and accountable.