Major banks last year rejected a compromise proposal to resolve their concerns with freedom of information act reform legislation, according Rep. Darrell Issa (R-Calif.), to one of the leading House sponsors of the bipartisan legislation that died in the final days of Congress.
Issa described the proposed deal at panel discussion on “Fixing FOIA” March 18, sponsored by the House Transparency Caucus.
Although it has been previously reported that financial interests, still unnamed, and some federal agencies, identified, lobbied against the bill behind-the-scenes, this is the first time a leading sponsor has disclosed efforts to reach an accord.
The bill died in December 2014 when House Speaker John Boehner (R-Ohio) declined to bring it to the floor, despite the urgings of Issa and others. (See FreedomInfo.org post mortem.)
This year, similar legislation is advancing. H.R. 653, the FOIA Oversight and Implementation Act of 2015, was passed by the House Oversight Committee March 25 with several amendments (see below). The Senate Committee on the Judiciary in February reported out (S. 337), the FOIA Improvement Act of 2015. See committee report.
Issa Describes Bank Objections
The provision that most concerned the agencies and the financial industry would have established a “public interest balancing test” for agency determinations of when to assert FOIA’s exemption 5, which protects the deliberative processes of government and “attorney–client privilege.”
Providing “a little insight into those last days,” Issa began by saying, “The unknown people were very easy to figure out. They were major banks; no question at all, they were pretty honest when they came in to see us and the Senate.”
“We tried to give them, at that time, and we’re going to deal with this again, language that addressed what they said was their problem,” Issa continued.
He said he agreed it was reasonable for the banks to want to protect against harmful disclosure of information via FOIA “which would otherwise be discoverable through other means and which was not per se government data.”
Banks Rejected a Deal
Issa said the banking interests were offered a deal.
“We were willing to protect it as long as there was a showing of either likely harm, including litigation harm, or a history of that material being used in a way in which it would harm somebody else.”
“We were willing to make a broad deal to provide that this information which was not inherently governmental but rather inherently private; that we would deal with it in FOIA differently. Because FOIA really is about discovering the government side of the activity, not to circumvent what would otherwise be private information,” according to Issa.
“They rejected that,” Issa said, saying this is what ultimately made it impossible to get a unanimous consent agreement to bring the bill to a vote.
Issa was not asked about details of Boehner’s position. On the final day the House was in session, Boehner told a press conference, “I have no knowledge of what the plan is for that bill.”
Issa, who no longer chairs the committee with FOIA jurisdiction, predicted that the same issue would arise again with revived FOIA legislation. Similar bills have been introduced.
The rejected offer of protection, he said, was not open-ended, he stated, anticipating further discussions.
“We are also going to be transparent in explaining that a limitation is not a universal limitation on all financial information, including ones that the government relies on for conclusions that may in fact… that the data may not match the conclusion. We want to be able to see the data, either individually or aggregated.”
“Yes, we want to have them have a say in what data they submitted, but not an outright veto.”
Agency Opponents Named
One hearing on FOIA has been held already this year by the House Committee on Oversight and Government Reform Subcommittee on Government Operations.
At the Feb. 27 hearing, Rep. Elijah Cummings (D-Md.) said government agencies opposed to the FOIA reform bill last year were the Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau and the Federal Trade Commission.
Committee Amends House Bill
The House bill approved by the Oversight Committee:
– requires agencies post more documents electronically;
– strengthens the FOIA Ombuds office, OGIS (which has to date not issued a single FOIA advisory opinion);
– codifies a presumption of openness; and
– a 25-year sunset for the oft-abused b(5) “withhold it because you want to” exemption.
The committee also adopted three amendments to the bill (but none suggested by the National Security Archive and a coalition of other Open Government groups), reported Lauren Harper in her weekly Unredacted blog post. She summarized:
The first accepted amendment would narrow the scope of what the government can withhold through the b(5) exemption – making it harder to withhold records like DOJ Office of Legal Counsel opinions; the second would require agencies to set up an email address to accept FOIA requests; and the third “would require the government to pay the legal fees of a plaintiff who successfully challenged the government’s withholding of documents in court. Current law gives the courts discretion to award legal fees but does not require it.
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