By Nate Jones

The author is the Director of the Freedom of Information Act Project for the National Security Archive, the publisher of FreedomInfo.org.

Proving again that the Freedom of Information Act may be the last bastion of bipartisanship in Washington DC, Senators Patrick Leahy, John Cornyn, and Chuck Grassley today marked Sunshine Week by passing the FOIA Improvement Act of 2016 (S. 337)– via Unanimous Consent –an extremely tricky task.

To pass the bill via UC, the senators amended the bill that passed out of the Judiciary Committee to make it slightly less strong than the bill that the Senate passed last session.  The section on Exemption Five reform was changed so that the 25-year sunset now only applies to the “Deliberative Process” privilege of Exemption Five (which covers drafts, and communications including emails and memos); the Attorney Client privilege and Attorney Work Product Privileges have been removed.  The Presidential Records Act forbids the use of any Exemption Five privilege beginning twelve years after the president leaves office.

While it was disappointing to see Exemption Five reform weakened from the reform that passed in 2014, the most egregious abuses will still be sunset (like the CIA’s withholding of its Bay of Pigs History); and the codification of the presumption of openness will apply to  the Attorney Client and Work Product privileges so if agencies follow the law (or are sued) more of that type of information will also be released.

The amendments also strike a Government Accountability Office audit, remove language forbidding censoring embarrassing information or information which could “technically” be withheld.

Language that would fix fee issues by forbidding agencies from charging most fees if they miss a deadline was also tweaked (but preserved).  Previously, agencies claimed that they could call a request “unusual” and thereby be exempted from the fees fix of the 2007 FOIA amendments.  This bill establishes once and for all that that is not the case.  Though it does lower the ceiling for requests agencies can charge fees for even if they miss their deadline from 50,000 pages to 5,000.  So requests over 5,000 pages could still be charged fees, even if an agency misses its deadlines.

While this is a very big step, FOIA reform passed both houses unanimously last year, only to die.  So our work is far from done.  The House FOIA bill, (HR 653) mirrors the Senate bill in many ways.  Here is a previous National Security Archive analysis of both of the bills– though this analysis was written before the Senate’s amendments were passed.

The House bill differs in it has much stronger Exemption Five reform, which does not have Attorney Client or Work Product privileges cut-outs and includes a strong test needed to pass to withhold modern records under Ex. 5.  It does, however, have two unacceptable Intelligence carve outs which would undermine the fundamental principles of FOIA and need to be removed.

So, strategically, there are three potential future outcomes:

• The House and Senate incorporate the best aspects of each bill, remove the IC carve-outs and pass amalgamated reform via conference.
• The House takes up and passes the Senate’s bill.  (It’s extremely unlikely the Senate will take up the House Bill.)
• Or House leadership (again) refuses to move on FOIA reform and FOIA bills that unanimously passed both the House and Senate will die again, for the seventh time, despite unanimous support.

Since its Sunshine Week, I’m optimistic the Janus Faced supporters of FOIA will be thwarted and the bill will actually become law this year.

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