July 1, 2014
Earlier this year, the Veterans Affairs Administration denied the Tampa Tribune’s Freedom of Information Act request for the names of VA hospitals where veterans died because of delays in medical screenings. To hide this information, the VA used the “pre-decisional” exemption, simply stating that the requested documents were “preliminary” communications and could thus be withheld. This misapplication was not an isolated incident. Agency use of this b(5) catch-all exemption has skyrocketed to more than 12 percent of all FOIA requests, often to prevent embarrassment or hide errors and failures –ignoring President Obama’s clear instructions to the contrary. Fortunately, Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Texas), working in one of Washington’s last bastions of bipartisanship, have introduced a bill that will stem this abuse.
The FOIA Improvement Act of 2014 will make it easier for everyday Americans to use the law to request and receive documents, such as the Veterans Affairs records, in three key ways. First, it reforms one of the most abused methods agencies use to withhold information: the so-called “pre decisional” exemption, which can actually be stretched to withhold all “interagency or intra-agency memorandums or letters.” Second, the bill legislates that agencies cannot charge some FOIA fees when they miss their FOIA deadlines. Finally, the bill strengthens the FOIA ombuds office, a mediation service provided to requesters when they cannot afford litigation, and promotes proactive online access to documents.
Perhaps most importantly, the Leahy-Cornyn bill fixes the “withhold it because you want to” FOIA exemption by requiring agencies (and, if necessary, courts) to weigh the public interest before denying documents. It also limits the use of this exemption to documents 25 years or younger. This parallels the restrictions placed by the Presidential Records Act; if communications at the highest levels of government are eventually de facto available to the public, it only makes sense that agency communications should be as well.
The bill also cements fairness into the FOIA fee system. When media, educational or scientific institutions submit FOIA requests, the majority of their fees are always waived. This is not the case for everyday requesters, who are often charged expensive “search and review” fees. Earlier Cornyn-Leahy legislation partially reduced these fees by mandating that a requester could not be charged fees if an agency missed the 20-day deadline to process the FOIA request. But, troublingly, agencies began successfully eluding this fee improvement simply by labeling requests as “unusual” and claiming these “unusual” requests were unprotected. The FOIA Improvement Act would definitively end this “unusual” fee runaround.
The FOIA Improvement Act also strengths citizens’ best FOIA advocate, the ombuds Office of Government Information Services. It gives OGIS more authority and ensures that agencies inform FOIA requesters that they have the right to request FOIA dispute resolution service in lieu of expensive litigation. Additionally, the bill includes a provision requiring agencies to proactively post documents of likely public interest digitally, so citizens can have access without having to file Freedom of Information Act requests.
Of course, for these FOIA reforms to take effect, the bill must become a law. Fortunately, the House of Representatives, spurred by the leadership of Reps. Darrell Issa (R-Calif.), Elijah Cummings (D-Md.) and Mike Quigley (D-Ill.), unanimously passed a FOIA reform bill this February with 410 votes. In response to the Senate bill, Chairman Issa’s office stated that he “is committed to FOIA reform and looks forward to working with his Senate partners.”
Given the bipartisan nature of both bills, the forecast for genuine FOIA reform that helps citizens access their government’s documents may well be sunny in 2014.
Jones serves as the FOIA Coordinator for the National Security Archive, a member of the OpenTheGovernment.org coalition.