Worries from the agencies are whispered into lawmakers' ears and then burrow into their official statements, raising alarm about FOIA's increased burdens if Congress tinkers with it yet again.
That has already begun to happen with S. 337, the "FOIA Improvement Act." In the report released by the Senate Judiciary Committee last week on the bill, Sen. Jeff Sessions (R-Ala.) said the Department of Justice and assistant U.S. attorneys told him that a specific provision of the legislation could trigger new litigation.
"I am informed by both the Department of Justice and the National Association of Assistant United States Attorneys that the 25-year sunset provision on Exemption 5 could invite defendants and their lawyers to use FOIA as an alternative discovery tool in attempts to re-open closed cases," Sessions said in a section tucked in at the end of the report and titled "Additional views from Senator Sessions."
Sessions, a former U.S. attorney, also said that "by subjecting such documents to potential disclosure, this legislation could chill government lawyers from offering candid advice and invite criminal defendants and their attorneys to re-open and re-litigate long-resolved cases."
Earlier in the Senate report -- which was filed by Sen. Charles Grassley (R-Iowa), the Judiciary panel's chairman -- it's noted that the sunset provision strikes "the proper balance" between FOIA's goal of transparency and "avoiding unintended consequences that might chill internal decision-making between government employees."
Sessions' attention is focused on a provision in the bill that restricts agency use of FOIA's Exemption 5, which blocks disclosure of records dealing with internal deliberations, to documents created less than 25 years ago. That provision would have weakened Exemption 5 even further, but its tougher language was stripped from the bill last Congress in order to gain support from lawmakers (E&E Daily, Nov. 21, 2014).
What can we do to help get this passed?
Some minor updates on the pending bills....
Sneaky fk'rs in the Senate tried to sneak in this sneaky little twist that would circumvent some of the improvements the new bills propose.
Dust-up over new FOIA exemption in cyber bill
Meanwhile in the House, the number of co-sponsors has grown so large with everybody and their brother jumping on the bandwagon to support it, I wasn't able to keep track of who's new and who's not. So we're at 42 House Reps total as of today: https://www.govtrack.us/congress/bills/114/hr653
Bump for a sign that the congressional constipation on the FOIA reform bills has possibly been treated with some sort of legislative laxative in the House!
GOP House Leader Kevin McCarthy has put it on this week's agenda for the "Items that may be considered under suspension of the rules" schedule. (which seems odd, it went stale nearly a year ago under this quickie-vote status and I expected that if it ever made it back to the floor it would be full-rules apply status. Erego - laxative assumption!)
Current House Floor Agenda: http://docs.house.gov/floor/
This billing seemingly has good support, so the quickie vote status is probably a good thing. It currently has 55 co-sponsors (29R, 26D) and was the rebirthed baby of Rep. Issa.
I recommend folks interested in seeing this pass check the list of cosponsors for their Representative, and if your congress critter in the House hasn't signed on then give 'em a gentle nudge to support it: https://www.govtrack.us/congress/bills/114/hr653
Oops! Sorry about that. I get a weekly digest email from govtrack every Sunday night for the bills, committees and congress critters I follow. So I had lifted the news/links from there.
H.R. 653: FOIA Act Amended corrected 1/11/2016 version here
Tracked events for H.R. 653: FOIA Act
Bill Summary — Jan 11, 2016 4:40 p.m.