Legislation in the House and Senate to make FOIA work better deserve public support. In the House, the bill is H.R. 653. In the Senate, the bill is S. 337.
There should be no controversy passing FOIA reform into law this year. The package of proposals address the same persistent challenges that requesters have faced using the 49-year-old law. The bills have been fully vetted and have bipartisan support. Last year the House passed FOIA reform by a recorded vote of 410-0. The Senate also passed a nearly identical version by unanimous consent.
Both House and Senate bills reflect bipartisan unhappiness with the way agencies fulfill their FOIA obligations. Both bills focus on making the FOIA process work better through modest improvements. Throughout Sunshine Week reporters and others have complained about the process and too many redactions that reduce a document to meaninglessness. (Did you see this one??)
— Rick Blum (@sunshineingov) March 12, 2015
The FOIA Improvement Act makes clear the intent of Congress that OGIS should speak with an independent voice. Congress in 2007 created the Office of Government Information Services (OGIS) to mediate disputes and “recommend policy changes to Congress and the President to improve the administration of [FOIA].” However, without a statement explicitly written into the 2007 FOIA amendments that the office should be independent, OGIS most other federal entities would circulate a draft of its recommendations to federal agencies for comment and to the White House’s Office of Management and Budget to ensure its advice was consistent with White House policy. The interagency review is conducted to ensure agencies do not adopt contradictory positions and the president’s policies are adhered to. But agencies, particularly the Justice Department, regularly resist commentary that reflects poorly on agency FOIA practices. Putting ideas for improving FOIA through the filter of the interagency review process is exactly what Congress did not want when it mandated that OGIS make recommendations to Congress and the President to improve the adminstration of FOIA.
Both bills write into law the federal government’s policy since 2009 that agencies start from a presumption of openness when considering FOIA requests. Agencies may withhold information if they see a specific, identifiable harm from disclosure, however when in doubt, agencies must err on the side of transparency.