Progress Worth Noting: Congress Strengthens The Freedom Of Information Act And The Public’s Right To Know

With the President's signature, a major Freedom of Information Act reform bill can blast against Washington’s culture of unwarranted government secrecy.

June 17, 2016

Cross-posted on The Huffington Post

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

In a gloomy news week dominated by the slaughter of 49 people at a gay nightclub in Orlando, Fla. and its aftermath, it is understandable that Congressional approval of unrelated legislation easing access to government records has not garnered tons of public attention. But Monday’s House passage of the bipartisan Freedom of Information Improvement Act previously approved by the Senate (also by a unanimous vote) now sends to the White House a major FOIA reform bill and blast against Washington’s culture of unwarranted government secrecy. President Obama has said he’ll sign the measure — a fitting way to mark the 50th anniversary of the nation’s premier transparency law this July 4th.

The bill’s foremost accomplishment is that it will embed in federal law a “presumption of openness,” making it clear that “sunshine, not secrecy, is the default setting of our government” and “government information belongs in the hands of the people,” as Patrick Leahy of Vermont, the Senate’s foremost Democratic champion of the legislation puts it.

Other key players in the multi-year reform effort included Republican Senators John Cornyn of Texas and Chuck Grassley of Iowa, and House members Jason Chaffetz of Utah and Darrell Issa of California, both Republicans, and Democrat Elijah Cummings of Maryland. In all, an impressive example of productive bipartisan cooperation. The legislation was also pressed by a coalition of nine media groups, including the Associated Press, the American Society of News Editors, the Reporters Committee for Freedom of the Press and the Society of Professional Journalists.

The idea is to make it harder for agency officials deny release of government information sought under the FOIA. The “presumption of openness” was first laid out as executive branch policy by President Bill Clinton, only to be reversed by his successor, President George W. Bush. President Obama reinstated it in 2009 as one of his first acts upon taking office, but his administration has been criticized for straying from the commitment to openness in practice, even lobbying against a similar version of the legislation that nearly passed both houses of Congress two years ago.

On top of putting the force of law behind the presumption of openness, another noteworthy provision will impose a 25-year sunset on the withholding of documents under a much-overused FOIA exception covering the government’s deliberative process in reaching decisions. A quarter of a century is a long time for the public to wait to know the truthful background of their government’s actions, but it is better than keeping citizens in the dark forever, as current law allows regarding many documents revealing of the government’s decision-making process.

Another key advance requires creation of an online portal for submitting FOIA requests, which are now handled differently by separate agencies. Frequently requested records must be posted online.

Only time will tell how well the new changes work and there are some needed fixes to the FOIA the legislation omits. Work on strengthening the FOIA and protecting hard-won gains needs to continue.

Most immediately, Senator Leahy cautions, the Senate Armed Services Committees has included broadly-drafted language in its version of the defense authorization bill that could carve-out the Defense Department from the regular disclosure regimen, potentially, for example, allowing the Pentagon to withhold documents regarding civilian deaths at the hand of U.S. forces, shedding light on the military’s sexual assault problem, or the legal justifications for drone strikes against American citizens. This lurch toward greater secrecy must be resisted.

(Photo: Thinkstock)