Sen. Rockefeller Sitting On FOIA Improvement Act, Despite Two Unanimous Votes In Favor Of Passage
from the bipartisan-support-meets-gov't-agency-resistance dept
A FOIA reform bill that sailed through both the House (410-0) and the Senate Judiciary Committee (again with a unanimous vote) is currently stalled, having gone nowhere for the past two weeks thanks to Sen. Jay Rockefeller.
The Freedom of Information Act Improvements Act (hereinafter cited as “FOIAIA”) helps put the “freedom” back in the FOIA — something that has a chance to trim down the number of requests that result in fully-redacted pages or federal lawsuits. Rockefeller has expressed some concerns about the openness of the open records law improvements.
“I have a long record of support for open government and the FOIA process. I am concerned that provisions in this bill will have the unintended consequence of harming our ability to enforce the many important federal laws that protect American consumers from financial fraud and other abuses,” Rockefeller said in a statement Friday. “According to experts across the federal government, these provisions would make it harder for federal agency attorneys to prepare their cases, and they would potentially give defendants new ways to obstruct and delay investigations into their conduct. I hope there is a way to address these concerns and pass the bill.”
The two agencies offering up the most resistance to the bill appear to be the FTC and the SEC, both of which apparently feel the law creates a playground for targets of its investigations.
[S]ources said the agencies’ concerns are that the legislation would allow companies to pierce the attorney-client and attorney work-product privileges, potentially giving targets of enforcement actions a roadmap detailing what kind or level of misconduct will trigger action and what kind is likely to be ignored.
There also appears to be a law enforcement contingent pushing for death of this bill as well.
“The bill would statutorily require government law enforcement agencies to withhold documents from a FOIA request only if they first establish that ‘the agency reasonably foresees that disclosure would harm an interest protected by’ the exemption invoked,” said a Rockefeller aide who asked not to be named. “Consequently, the bill could expose law enforcement agencies to needless litigation and drain their already limited resources in defending FOIA decisions that have long been invoked for legitimate law enforcement purposes.”
Transparency advocates point out that privileged attorney-client communications will remain privileged even with the passage of the bill and that government agencies will still retain the power to redact information and withhold documents — they’ll just need to start providing better explanations for these actions. As for the concerns about the new “forseeable harm” requirement? That requirement isn’t even new.
“Agencies have been required to use this standard since 2009 when Attorney General Holder issued a memo requiring it. Agencies also used this same standard during President Clinton’s term. It was only during President George W. Bush’s term of secrecy that this standard was rolled back,” [Patrice McDermott of OpenTheGovernment.org] wrote.
So, it appears Rockefeller is hoping the whole thing just goes away. The reform bill had already been watered down post-House passage and additional concerns raised by Tom Coburn had been addressed, resulting in him releasing his hold on the legislation late last week. Now, it’s up to Rockefeller to do the same. If he doesn’t do it by the end of the day on Monday, the bill dies.
As it stands now, Rockefeller is standing alone among his fellow senators and representatives. Two unanimous votes — one in the House and one in the Senate — are being negated by a single Senator. Supporters of FOIA reform are urging people to contact his office and make it clear that Rockefeller alone shouldn’t get to decide whether this bill lives or dies, especially considering its path to this point.