Administration strongly lobbied against FOIA reform

The Obama administration strongly opposed a bill to overhaul the government’s open-records laws and lobbied behind the scenes to prevent it from getting to the president’s desk last Congress, according to emails and talking points obtained by the Freedom of the Press Foundation. 

The records include a particularly revealing set of 2014 talking points used by the Department of Justice that raised about a dozen major and minor objections to the broadly supported legislation. The document says the changes in the bill are “not necessary” and would “undermine” the success of the Freedom of Information Act (FOIA). 

{mosads}”The Administration views [the bill] as an attempt to impose on the Executive Branch multiple administrative requirements concerning its internal management of FOIA administration, which are not appropriate for legislative intervention and would substantially increase costs and cause delays in FOIA processing,” according to the opening paragraph of the talking points. 

The Freedom of the Press Foundation obtained the documents through a FOIA lawsuit. It first shared them with Vice News, which has reported extensively using open records. The Justice Department told Vice it is not uncommon for the department to share the “potential unintended consequences” of legislation. 

The House and Senate passed slightly different versions of the legislation, but despite late scrambling, the two bills were never merged and died when the last legislative session ended. 

This Congress, both chambers acted quickly to move their respective FOIA reform bills out of committee. And the House passed its version earlier this year. The Senate Judiciary Committee acted quickly last year to advance its proposal, but it had not received floor time in the ensuing year. 

The White House has been publicly mum on the reform bills. When the House bill passed this January, the White House simply said it would “take a close look at this legislation.” Other agencies have also lobbied against the bill. 

The documents released Wednesday show that GOP leadership last March “hotlined” its FOIA bill, meaning it looked to move the legislation through unanimous consent unless there were objections. But Sen. Jeff Sessions (R-Ala.) put a hold on the legislation, according to an email from a Sessions aide to the Justice Department. 

Sessions’s office did not respond to a request for comment about the bill. 

The largest piece of the FOIA reform legislation would codify a so-called presumption of openness, which requires federal agencies and other parts of the government to adopt a policy that leans toward the public release of documents. President Obama instructed agencies to adopt a similar model when he first entered office. But critics say agencies have not lived up to that promise.  

Under the legislation, agencies would have to point to a specific “foreseeable harm” when withholding documents unless disclosing them is specifically barred by law. The legislation would do a number of other things, including creating a single FOIA request portal for all agencies and limiting the amount of time that certain documents are exempt from disclosure. The bill would also make more documents available online.

In the 2014 talking points, the Justice Department raised four “major concerns” with the legislation. Among them were the “foreseeable harm” proposal.

“The bill effectively amends each and every one of the existing exemptions in a manner that is fatally vague and subjective. This addition would vastly increase FOIA litigation and would undermine the policy behind each of the existing exemptions,” according to a section of the talking points criticizing the foreseeable harm provision. 

Other major objections centered on the creation of a single FOIA request website and the bill’s requirement that agencies do a comprehensive review of existing records to see if they should be proactively released.