The legislation, which has bipartisan support and is backed by open government advocates, is co-sponsored by Senate Judiciary Committee Chairman Patrick Leahy and Senator John Cornyn, the ranking Republican on the committee.
The bill, dubbed the "FOIA Improvement Act of 2014," along with a "manager's amendment" (a bill that contains individual amendments from a majority or minority sponsor of a piece of legislation) unveiled today will be voted on Thursday. It will still need to pass the House, which has indicated it supports the legislation, before it is sent to President Barack Obama and signed into law.
One of the significant changes contained in the manager's amendment is the Exemption 5 balancing test. Exemption 5 applies to government records that are part of a behind-the-scenes "deliberative" decision-making process and covers any "inter-agency or intra-agency memorandums or letters," drafts, and attorney-client records. It's a discretionary exemption that government agencies could waive in favor of disclosure. But transparency advocates say it is one of the most abused of FOIA's nine exemptions; the government often invokes it to justify the withholding of records.
In 2012, according to Leahy, government agencies cited the exemption more than 79,000 times, a 41 percent increase compared with the previous year. Last year, according to statistics compiled by the Associated Press, the use of Exemption 5 reached an all-time high: 81,752, accounting for 12 percent of all the open-records requests government agencies processed in 2013 that resulted in denials.
In the version of the bill unveiled last June, Leahy and Cornyn proposed a balancing test that would have forced government agencies to weigh the public interest against the need for continued secrecy whenever Exemption 5 is used. The amended version drops the balancing test.
However, the manager's amendment (pdf below) left intact another change to Exemption 5. Records that government agencies withhold under that exemption would no longer permanently remain secret, as required under the current law. The reform bill says Exemption 5 records can be released after 25 years. That could lead to a flood of FOIA requests, and would also be a boon for historians.
"The bill with managers amendment is very strong," said Nate Jones, the FOIA coordinator for George Washington University's National Security Archive, in an email exchange with VICE News. "If passed, it will lead to the release of more information more quickly. The 25-year cut-off stays, which is a big win."
Amy Bennett, the assistant director at OpenTheGovernment.org, told VICE News, "We think this is a really strong FOIA reform bill that would really help the public actually use the FOIA to better understand what the government is doing and why. We are particularly excited that the bill would finally pierce the government's ability to indefinitely withhold information under [Exemption 5]."
Other potential results of the manager's amendment that Bennett highlighted:
- Requestors would not be charged search and duplication fees if the government fails to respond within a certain amount of time.
- The Government Accountability Office (GAO) would be required to report on government agencies' backlog reduction methods and on the use of FOIA exemptions to withhold records.
- The GAO would also be required to conduct audits of three or more agencies every two years.
- The Office of Management and Budget would be required to build a centralized portal for online FOIA requests.
- Agencies must release records unless prohibited by law or disclosure would result in a "foreseeable harm."
The use of FOIA has skyrocketed under the Obama administration. Government agencies received 704,394 FOIA requests in 2013, an 8 percent increase compared with the previous year. The Department of Homeland Security (DHS), which accounts for more than 30 percent of those requests, said it received a "staggering" 231,534 FOIA requests in 2013 — more than any other federal agency. DHS also boasts the largest backlog of pending FOIA requests, and said its backlog for fiscal year 2013 increased from 28,553 to 53,598 requests.
Follow Jason Leopold on Twitter: @JasonLeopold
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