UPDATE – 6:00 PM EST: West Virginia Democratic Senator Jay Rockefeller stopped blocking the bill and the Freedom of Information Act Improvement legislation passed in the Senate. The groundswell of opposition to Rockefeller certainly played a role in forcing Rockefeller into the tenuous position of having to defend his position. When the White House and other senators did not stand with him in opposition, Rockefeller relented. Vermont Democratic Senator Patrick Leahy brought it to a vote and the reform passed.
West Virginia Democratic Senator Jay Rockefeller has placed a last-minute hold on critical Freedom of Information Act (FOIA) legislation. Open government advocates involved in developing the legislation believe if Rockefeller does not lift his hold today his act could effectively kill reform.
The bill’s sponsor, Vermont Democratic Senator Patrick Leahy, stated on December 5 that the reform would “reduce the overuse of exemptions to withhold information where there is no foreseeable harm. It will make information available for public inspection and frequently requested documents available online.”
According to the Sunshine in Government Initiative, which includes the Associated Press, Reporters Committee for Freedom of the Press and various other news associations, this reform would limit the “ability of agencies to hide decades old documents from the public.” It would push more government agencies to use “modern technology” and adopt a greater “presumption of openness when receiving and responding to requests from the public.”
Leahy declared last week, “We can pass this bill in the Senate and send it over to the House, where I am confident that it will pass, and send it to the President to sign before the end of the year. There is no reason to delay this legislation, which has broad support from a range of stakeholders, costs very little to implement and will improve access to government for all Americans. I urge the Senate to pass the FOIA Improvement Act now, without delay.”
But Rockefeller found a reason to place a hold, one involving concerns which Leahy’s staff had not been aware of until it came time to pass the legislation.
“The FOIA Improvement Act, which was introduced in June, was approved unanimously by the Judiciary Committee on November 20,” an unnamed Leahy staffer told POLITICO. “It has the support of more than 70 government transparency groups and is the result of months of consultation with the administration and a wide range of stakeholders.”
The reform has already gone through the proverbial machine on Capitol Hill, which slices, dices, mashes, liquifies and reconstitutes legislation to satisfy those in power who might be threatened by reform. A key provision that would have permitted judges to make decisions about whether to protect an agency’s “legally privileged” records or uphold the public’s interest in information was removed. Overall, the legislation would still be positive for media and various other organizations, which rely on FOIA requests to bolster their work.
So, why does Rockefeller, who is retiring, not want the reform to pass in its current form?
“I have a long record of support for open government and the FOIA process,” Rockefeller stated on December 5. “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. 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.”
Amy Fuller Bennett, an assistant director of OpenTheGovernment.org, reacted, “This bill has been vetted by many experts over the last few years. The benefits of this bill far outweigh any nebulous ‘concerns.’ Senators Leahy and Cornyn worked with several other offices to make sure that there was broad support and no reasons to object to the bill as it was passed out of the Committee. With all due respect, the time to raise concerns was sooner.”
“The only reason to place a hold on the bill now is to stop it from being signed into law,” Bennett added.
Daniel Schuman, an advocate for government transparency who is with Citizens for Responsibility & Ethics in Washington (CREW), reacted, “Your press release does not specify your specific concerns but merely states some undefined hypothetical concerns—not enough to go on. It also cites experts without saying who they are or what they want.”
Calling into question his commitment to openness and transparency, an anonymous Rockefeller aide provided comments to POLITICO on December 7. The aide made it clear that the issue Rockefeller has is with one of the parts remaining in the legislation that makes the reform worth passing: the fact that an agency must reasonably foresee harm occurring if it is going to invoke an exemption.
The aide rationalized that “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.”
“The chairman believes this new foreseeable harm standard would likely have a chilling effect on internal communications and deliberations and could limit internal debating on law enforcement strategy, deter agency employees from providing candid advice, and lower the overall quality of the government decision-making process,” the aide further suggested.
POLITICO’s Josh Gerstein reports that “a handful of independent federal agencies are arguing that the legislation could allow corporate defendants to frustrate law enforcement by filing FOIA suits aimed at obtaining internal communications between agency lawyers and decision-makers.” The Federal Trade Commission and the Securities and Exchange Commission reportedly object to the bill.
It is hard to believe that these agencies were not consulted and given an opportunity to be part of the process of watering down the FOIA reform to ensure business as usual was not seriously disrupted.
There is no mechanism in the reform for corporations to essentially use FOIA to blackmail the SEC or FTC into looking the other way instead of investigating corruption. (Plus, Rockefeller has been a senator for 30 years. Corporations already are adept at pressuring government agencies to halt or whittle down investigations into them. They don’t need FOIA reform.)
What does it say about Rockefeller’s claimed commitment to openness and transparency that he will not personally be more open with the public about why the FTC, SEC, Justice Department or any other agency suddenly objects? How does he think the public views his deploying of aides to speak anonymously for him because he does not have the guts to be honest and held accountable for his stand against FOIA reform?
Does Rockefeller really think the public will believe he is not doing the dirty work of government agencies, who favor the status quo, because he is retiring and there may be no consequences for him?
Plus, if this is the concern, that the reform may “limit internal debating on law enforcement strategy, deter agency employees from providing candid advice, and lower the overall quality of the government decision-making process,” perhaps, Rockefeller is fixating on an earlier version of the legislation.
Leahy and others considered giving judges greater authority to question claims of attorney-client privilege or what is called “deliberative process privilege,” even though judges technically can already override these claims if they want. It was removed, probably at the behest of prosecutors in the Justice Department who fear greater transparency. Now, there is no reason to fear judges questioning privilege claims and forcing the release of information because there is no “foreseeable harm.”
Think about it: Even if the judge found there would be no “foreseeable harm,” the judge could still take a different track in preventing the release of records. A judge could acknowledge that the records were covered by attorney-client privilege or the “deliberative process privilege,” which happens now all the time.
Based off negative parts of the FOIA improvement legislation that do not exist on any of the bill’s pages, Rockefeller is fabricating concerns on behalf of the status quo and the special interests of government agencies
As Ryan Shapiro, a transparency researcher and FOIA specialist at the Massachusetts Institute of Technology put it, “The Freedom of Information Act is one of the most under-appreciated elements of the entire American experiment. The notion that the records of government are the property of the people, and all we need to do to get them is to ask for them, is radically democratic.”
“But FOIA is broken, and as a result federal agencies routinely exploit loopholes in the law. The FOIA Improvement Act of 2014 is a vital step in closing these loopholes. Unless Sen. Rockefeller wants to be remembered as a champion of governmental secrecy and obfuscation, he must lift his ill-considered hold immediately.”
All members of the media should be urging their readers and viewers to call Rockefeller’s offices right now to demand that he lifts his hold. FOIA is one of the few mechanisms keeping national security journalism in the United States from going into a coma. But it has to be continually protected from becoming obsolete in order to keep this tool valuable to journalists.
Here is the information if you would like to pressure Rockefeller to stop obstructing improvement to FOIA.
Beckley Office: (304) 253-9704
Charleston Office: (304) 347-5372
Fairmont Office: (304) 367-0122
Martinsburg: (304) 262-9285
Photo from NASA as a government work is in the public domain.