The Freedom of Information Act, first enacted in 1966, allows the public to see how their government functions — and fails to function — by providing access to official records. In fiscal year 2013, government agencies released some or all of the information sought in 440,997 requests.
But too often, information that should be released isn't because agencies invoke of one of nine exemptions spelled out in the law, ranging from from protections for personal privacy to considerations of national security. Critics have focused especially on the overuse of an exemption for “inter-agency or intra-agency” documents that has come to be known as the “withhold it because you want to” exemption. For example, the CIA invoked that exemption to deny a request for release of a 30-year-old internal history of the 1961 Bay of Pigs operation in Cuba.
Last week the Senate Judiciary Committee unanimously approved the FOIA Improvement Act of 2015. Like a similar bill in the House, it would require that agencies operate under a “presumption of openness” when considering the release of information and would limit the exemption for so-called deliberative letters and memos — written by policymakers during the decision-making process — to those less than 25 years old.
These and other proposed changes in the bills — including a requirement for a single online portal for all requests — don't address all the problems with the FOIA. At some point Congress also must limit the effect of a court decision that lets agencies refuse on privacy or national-security grounds to acknowledge whether a requested document even exists. Nevertheless, this legislation deserves to be passed.
President Obama has a mixed record on government transparency. His administration has relentlessly pursued leakers and has asserted the “state secrets” privilege to try to frustrate lawsuits over the government's anti-terrorism policies.
But to their credit, Obama and Atty. Gen. Eric H. Holder Jr. have directed agencies to apply a presumption of openness in responding to FOIA requests. That is precisely the standard that would be codified by these bills. They are worthy of not only Obama's signature but also his vocal support.