FOIA reform nears Senate finish line

Legislation to give the public more access to government records could pass the Senate as soon as this week, according to supporters.

After a year of delay, a few holdout senators recently removed their opposition to a bill to update the Freedom of Information Act (FOIA). Senate backers hope to approve it with unanimous consent during “sunshine week,” which started Monday and is dedicated to highlighting the need for government transparency.

Senate Majority Whip John Cornyn (R-Texas), the bill’s lead sponsor, has been trying to get it approved since last March. At the time, he “hotlined” the bill, hoping to pass it by unanimous consent unless there was any objection.

{mosads}Sen. Jeff Sessions (R-Ala.), a former U.S. attorney, put a long-term hold on the bill. But Sessions signaled Thursday he would remove his opposition after some of his changes were accepted by Cornyn’s office. Sen. David Vitter (R-La.) also removed a hold days ago.

“It is very bipartisan,” said Judiciary Committee Chairman Chuck Grassley (R-Iowa), another bill sponsor. Grassley’s office said sponsors are hoping to move the bill this week. Cornyn told National Journal the same last week.

“Previous efforts to improve FOIA have always been bipartisan, and that should continue,” Sen. Patrick Leahy (Vt.), who coauthored the bill, said during a speech Monday. “It is my hope that Democrats and Republicans can come together and pass this commonsense legislation this week.”

The bill is one of the few pieces of legislation that could make it to President Obama’s desk in a tight election-year schedule.

It could end up forcing Obama’s hand. While the White House has been publicly mum on whether it would sign the bill, Obama’s Justice Department and other federal agencies lobbied behind the scenes to help kill FOIA legislation last Congress.

When asked in January if a similar proposal had Obama’s support, White House press secretary Josh Earnest simply said, “We’ll take a close look at the legislation.”

The House easily passed a similar reform bill in January. And if the Senate acts, the two proposals will have to be merged before they head to Obama. This time, lawmakers want to give themselves more breathing room.

The House and Senate both passed their respective bills last Congress. But Senate passage came so late that it left no time for lawmakers to work out differences. Differences between the chambers and outside lobbying pressure killed hopes for reform before the session ended.

The reform bill is meant to clean up problems with the open-records law used by journalists, researchers and the public. The process has long been plagued by complaints and delays. The House Oversight Committee recently issued a report declaring that the law is “broken.”

In particular, 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 entered office, but critics say the government hasn’t 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 barred by law.

The legislation would also create a single FOIA request portal for all agencies, limit the amount of time that certain documents are exempt from disclosure and make more documents available online.

Advocacy groups are hopeful and keeping pressure on lawmakers. The Sunshine in Government Initiative, a group of press organizations, sent a letter to every senator last week pressing for a quick vote.

“We had heard rumors of objections and requests for different language, but the only public concerns expressed came from Sessions,” the group’s leader, Rick Blum said, adding, “I don’t know of any further roadblocks to the bill.”

Supporters would see clearing the Senate as a victory after a long delay.

Sessions and Cornyn would not discuss what, if any, substantive changes were made to the bill to get the Alabama senator to remove his opposition. Sessions had previously raised concerns about a provision that would allow the public to obtain agency information deemed privileged if those documents are more than 25 years old.

“In my experience as the U.S. attorney for 12 years and having seen all that, I’m uneasy about some of the provisions, and I don’t know if they can be harmonized or not. Initially my concerns were not fully accepted,” Sessions initially told The Hill, before a staffer informed him that a deal had been struck.

Emails from last year suggested that Cornyn’s position on the 25-year provision was non-negotiable. Last week, he told National Journal he was open to changes that do not undermine the basic principles of the bill but did not address that specific provision.

There are nine exemptions to FOIA, which allow federal agencies to withhold information from the public. Exemption 5 is most frequently used and allows the government to withhold privileged communication in agencies. That includes documents related to the deliberative process, attorney work product and attorney-client communication.

FOIA advocates derisively call it the “withhold it because you want to” exemption.

Sessions feared that the 25-year sunset for exemption 5 could cause a chilling effect among government lawyers, who would know their privileged communication could one day be made public. Echoing the Justice Department, he publicly worried that the exemption could be used to help reopen cold cases or as a discovery tool in court cases that last longer than 25 years. 

— Updated 3:50 p.m.