Senate bill seeks to increase access to government records

Bipartisan bill in Senate would limit exemption to Freedom of Information Act

Hoping to make some of the most significant reforms to the Freedom of Information Act in decades, the Senate has introduced bipartisan legislation — similar to one already passed in the House — to improve public access to government records.

The Freedom of Information Improvement Act, introduced Tuesday by Sens. Patrick J. Leahy (D-Vt.) and John Cornyn (R-Texas), would limit the most commonly used — and criticized — exemption to FOIA. The exemption, which critics see as vague and overused, permits government officials to refuse to release documents deemed to be part of any "deliberative" process.

The bill would also codify the "presumption of openness" that President Obama declared on the first day of his first term in office.

"Open government is the hallmark of a healthy democracy," Cornyn said in a statement. "And the American people have a fundamental right to know what their government is doing."

Given the gridlock in Congress and distractions of midterm election campaigns, prospects for passage this year remain unclear, but supporters said they were encouraged.

"It is a real bipartisan effort," said Thomas Blanton, director of the National Security Archive at George Washington University. "It represents a real possibility for actual congressional movement."

The 48-year-old act, commonly used by journalists and research groups, requires the government to disclose documents upon public request, but allows for exceptions, such as records that might endanger national security or reveal trade secrets.

The Senate bills targets so-called Exemption 5, which excuses records that are a part of a decision-making process, such as ones that could be a part of civil or criminal litigation, or policymaking. Many transparency advocates refer to the provision as the "withhold it because you want to" provision.

Despite Obama's promise to make government more transparent, in 2013 his administration cited "national security" to withhold FOIA-requested information a record 8,496 times, according to an Associated Press analysis of government FOIA requests. Agencies cited "deliberative process," or Exemption 5, nearly 82,000 times that year.

Nearly half — 50 out of 101 — agencies have not updated their FOIA regulations to comply with amendments Congress made to the law in 2007, according to a National Security Archive report released in March. Even more agencies — 54% — have not changed their guidelines to reflect Obama's 2009 directive.

The administration "hasn't had good control," said Nate Jones, the FOIA coordinator for the National Security Archive. "They haven't been able to beat that message into the FOIA shops" at government agencies.

Under the proposed Senate legislation, documents that agencies consider to be a part of a decision-making process would be subject to a public-interest balancing test. If the public interest in seeing the records outweighs the agency's interest in protecting the information, the law would mandate disclosure.

Additionally, any document created more than 25 years ago could not be withheld under Exemption 5.

The House version, sponsored by Rep. Darrell Issa (R-Vista) and passed unanimously in February, would set a six-month deadline for agencies to update their FOIA regulations.

Transparency advocates applauded the Senate for addressing FOIA's weakness, but warned that other disclosure obstacles remained.

"There is still the problem of over-classification," said Courtney Radsch, advocacy director for the Committee to Protect Journalists. "That's not going to be addressed by legislation, but it's a step in the right direction."

She noted that even if stronger legislation were approved, it's still up to the government to implement it.

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