From the ASNE This Week

You may recall (since we circulated an alert about it) that the House of Representatives passed comprehensive Freedom of Information Act (FOIA) reform legislation last summer. However, our celebration of this key legislative action was cut short when we learned soon after that the Senate didn’t intend to move the House bill, and instead Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., two longtime champions of FOIA and open government, were drafting their own legislation. So we set to work with these and other members of the Senate and their staff to ensure that this Senate FOIA reform bill would improve the federal FOIA in several ways.

That Senate legislation has now been introduced as the “FOIA Improvement Act of 2014.” ASNE is proud to endorse this bipartisan bill, which we believe will significantly assist members of the public — including journalists — in obtaining the maximum amount of information possible from federal agencies as soon as possible. ASNE members are asked to voice their support in the face of potential executive branch opposition to the legislation.

In addition to the text of the bill available above, a section by section analysis of the bill is available. Among the proposed changes to the federal FOIA are:

  • Clarification that “frequently requested records,” which must be proactively disclosed to the public without the need for a request, include any record that has been released to the public and requested at least three times, while also containing other provisions designed to increase the proactive disclosure of records, especially in electronic format.
  • Codification of the “presumption of openness” that has existed as a policy during the Obama Administration (and, similarly, during the Clinton Administration), which states that an agency can only withhold information if it foresees a specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.
  • A narrower application of exemption (b)(5) to include a public interest balancing test where the government seeks to withhold records under the “deliberative process privilege” or the  attorney work-product privilege. The government would have to release even documents generally falling into these categories if the public interest in disclosure outweighs the agency’s interest in protecting the records or information, though, in the case of the attorney-client privilege, a compelling public interest would need to outweigh the agency’s interest in nondisclosure. Finally, any exemption of five protections would sunset 25 years after the documents were created, allowing for more access to documents of historical importance and interest.
  • Giving additional independence to the Office of Government Information Services (OGIS), commonly referred to as the “FOIA Ombudsman,” to allow OGIS to make recommendations for fixing FOIA problems directly to the President and Congress without prior review and approval by the Office of Management and Budget and to allow OGIS to issue advisory opinions when it weighs in on individual disputes between requesters and agencies (the number of which should actually increase because all agencies are now required to notify requesters that they can turn to OGIS at the time the agency provides written notification that it is denying a request).
  • Creating a Chief FOIA Officers Council, modeled after the Chief Information Officers Council, to allow for discussion of agency best practices, coordination of initiatives regarding transparency and open government and development of recommendations for improving FOIA.

We thank Sens. Cornyn and Leahy for introducing this important bill, and hope the Senate passes this legislation quickly. Again, your voice is going to be very helpful in moving this legislation.

Please feel free to contact ASNE Legal Counsel Kevin M. Goldberg at 703-812-0462 or goldberg@fhhlaw.com if you have any questions.

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