Momentum builds for FOIA reform legislation

After FOIA reformers earned unanimous support in both the House and the Senate last winter, this year transparency groups want to do even better, and see the next round of improvements to the Freedom of Information Act become law.

Congress has been attentive, with numerous, vigorous, comprehensive hearings. Journalists and watchdogs are using FOIA – and talking about what could make it even more helpful. Transparency groups are trading notes on proposals to make FOIA more efficient. The Office of Government Information Services (OGIS) is reviewing agencies’ FOIA operations for compliance and improvements. The Obama Administration has published its third “Open Government National Action Plan” — with several recommendations for FOIA — though nothing can trump congressional action to strengthen the Freedom of Information Act.

And in recent weeks, the Society of Professional Journalists has been highlighting the products and problems of FOIA on Twitter (at SPJ_tweets).

That’s why we want Congress to #FixFOIAby50.

A two-day hearing in June focused congressional attention on agencies and FOIA, as the House Oversight and Government Reform Committee sought input from transparency advocates, and quizzed agency officials about shortfalls. Legislation in the House continues to attract support; since that hearing, twelve more members have co-sponsored H.R. 653.

And then in August, the Charlottesville Daily Progress observed that FOIA is an essential, but uneven, source of information: “Congress must strengthen this vital tool [FOIA] so that the facts about our federal government may be aired and voters can hold their leaders accountable for mistakes. In addition to the VA scandal, the FOIA has aided reporters in uncovering abuses at the CIA and delays in inspecting the nation’s decaying infrastructure, among many other stories. But many others are likely buried in federal vaults, thanks to an [sic] FOIA system that is slow, ineffective and difficult to negotiate.”

The Duluth News Tribune echoed the argument: “[f]or every breaking story made possible by the FOIA, countless others are undoubtedly buried as the law’s effectiveness sags under the weight of backlogs, inconsistent proactive disclosure, overbroad exemptions and outdated technology.” That is the problem; the paper also highlighted the solution: “The law that helps assure democracy stands to benefit from constant review, tweaks with changing times and thoughtful improvement.”

Thus, FOIA’s importance and impotence continue.

Just this summer, we’ve seen FOIA help inform the public about costly disagreements over drones, the DEA’s inadequate discipline for agents, and the decline of white-collar criminal prosecutions to a twenty-year low. And FOIA has been integral in updating coverage of lobbying violations and the CIA’s contributions to producing “Zero Dark Thirty.”

However, it’s still too easy for agencies and the administration to evade scrutiny of b(3) provisions, because they’re not automatically referred to the most appropriate committees. Agencies can err on the side of withholding, daring requesters to litigate, confident that not everyone can or will. Open-government supporters fended off a broad new “b(10)” provision last summer, but recent “cybersecurity” legislation included additional constraints on FOIA: amendments that seem designed to protect information that’s already protected — and swamp agencies with information, when they’re already at risk of being overwhelmed.

These are some of the enduring problems of FOIA. But with public and congressional persistence, we should be able to address them — and make FOIA a more powerful force for the public interest. That’s why we urge Congress to act to fix FOIA by the law’s 50th anniversary on July 4, 2016.

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