In the final days of the 113th Congress, the Senate successfully passed bipartisan legislation to reform the Freedom of Information Act (FOIA). The measure prevailed after several senators placed holds on the bill, temporarily blocking a vote. The last hold, by Sen. Jay Rockefeller (D-WV), was lifted Monday afternoon, and the Senate passed the bill by unanimous consent. The House, which already passed a version of the legislation, now has a handful of days to approve the Senate bill and send it to President Obama for his signature. 

Freedom of Information Act Shortcomings Cry Out for Reform

The importance of the Freedom of Information Act as a means to access government information cannot be overstated. Reporters, researchers, advocates, businesses, and lawyers frequently use FOIA to get vital information from federal agencies. That information is often used to benefit the public – to inform them through news stories, to hold government and corporate officials responsible for their actions, and to empower people with the information needed for action. Even in the age of websites and huge online databases, agencies receive hundreds of thousands of requests each year. 

Despite its importance, the FOIA process has never worked as envisioned. Delays have plagued the process, and high fees and the inconsistent and questionable use of exemptions to withhold information have prevented the law from fulfilling its full potential.

The Legislation

Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX) introduced the FOIA Improvement Act of 2014 to address some of the law’s shortcomings. Their bill contains much-needed improvements to the process and increases oversight of the law's implementation and enforcement. 

The legislation builds the presumption of openness into FOIA and only allows agencies to withhold information if disclosure would result in "foreseeable harm." This would cut down on agencies reflexively withholding information with little or no cause. The bill would also encourage greater proactive disclosure by updating records management requirements. Under the legislation, agencies would have to identify records of interest to the public and make them available electronically.

The legislation would also improve oversight of FOIA implementation. It contains several provisions to give the Office of Government Information Services (OGIS) greater authority and input into agency FOIA practices. The legislation would also establish a Chief FOIA Officer Council that OGIS would co-chair with the Department of Justice. The office would also have greater independence to report FOIA recommendations directly to Congress and the president without layers of review or political interference.

The legislation includes several other improvements, including a requirement for a central online portal for filing FOIA requests with any agency, a 25-year time limit on using the exemption that protects communications within or between agencies, and changes to prevent agencies from charging normal fees when they miss response deadlines. These changes will address many of the real-world problems that requestors struggle with currently.

The Senate Holds

The Senate Judiciary Committee passed the Leahy-Cornyn bill unanimously on Nov. 20. As the bill moved toward the floor for a vote, several senators placed holds on it, including Sens. Tom Colburn (R-OK), Tim Johnson (D-SD), Bob Corker (R-TN), and Rockefeller. 

Supporters of the legislation quickly took to social media to push the senators to lift their holds and allow the Senate to vote on the bill. Most of the senators lifted their holds in a matter of hours as their respective questions about the legislation were answered, but Rockefeller maintained his hold throughout this past weekend over concerns that the bill might make it more difficult for agency attorneys to prepare cases against people and companies engaged in financial fraud.

Open government advocates steadfastly maintained that that the proposed FOIA changes would not result in any significant interference with government investigations or enforcement activities, and they worked with Rockefeller on several minor language changes to clarify the intent of the legislation.

Leahy responded with a statement explaining the importance of the legislation and urging all senators to support the bill. "This week, we can pass this bill in the Senate and send it over to the House, where I am confident that it will pass, and send it to the President to sign before the end of the year," he said. "There is no reason to delay this legislation, which has broad support from a range of stakeholders, costs very little to implement and will improve access to government for all Americans."

Time Is of the Essence

With only five legislative days remaining, time is short for the House to pass the bill and send it to the president's desk. Leahy seems unworried about the short timeframe, however, and open government advocates are optimistic that the House will act quickly on this common-sense transparency reform.