Precious little in the way of bipartisan reforms have been approved by the present Congress, so Speaker of the House John Boehner and majorities on both sides of the aisle could do themselves and America a huge favor by repeating something they’ve already done once before this year.
That something is approving the FOIA Improvement Act, which was adopted by the Senate on Monday by unanimous consent. A virtually identical version of the bill was approved by the House with 410 votes earlier this year. Now all that remains is for the Speaker to allow a vote on final passage before the House adjourns this week. The Freedom of Information Act became law in 1966 and requires all federal documents to be available on request unless covered by one of nine exemptions.
There are reports that Boehner is having second thoughts abut the measure, but that seems hardly credible in view of the previous House vote and the modest steps forward in government transparency and accountability that will be encouraged if the measure becomes law. The most significant provision concerns the most frequently used exemption under the FOIA, the “pre-decisional” Exemption Five.
That’s the most often used because it allows executive branch bureaucrats and political appointees to withhold any federal document that would otherwise have to be made available to requestors if said document was created as part of the deliberative process in the making of decisions. That’s an exemption so broad that my nine-year-old black lab, Okie, could use it to cover virtually any tax-paid document ever created.
Perhaps that’s an exaggeration, but ask any investigative reporter or researcher at watchdog outfits like Judicial Watch or Project on Government Oversight what’s the obstacle they run into most often and FOIA’s pre-decisional exemption is sure to cross their lips first.
Even so, the FOIA Improvement Act, which was co-sponsored by Sen. John Cornyn, R-Texas, and Sen. Patrick Leahy, D-Vt., only creates a 25-year ceiling on how long Exemption Five can be used to withhold a particular document. That brings the FOIA more in line with current law covering presidential documents.
Other provisions would give the Government Accountability Office authority to monitor agency compliance with the FOIA, prohibit agencies that miss legally required deadlines for responding to FOIA requests from charging unreasonable reproduction fees and establish as a matter of law the requirement that agencies make available all requested documents that aren’t specifically required to be withheld or that would do no harm if released.
These are sensible improvements that could make a positive contribution to the reinvigoration of congressional oversight by affording individual citizens, journalists and nonprofit watchdogs greater access to government documents that are required to be made available but which bureaucrats and political appointees prefer, for whatever nefarious purposes, to keep behind closed doors.
Passage would also be concrete evidence for the American people that post-election promises of cooperation by Republican and Democratic leaders alike weren’t simply more of the Washington-business-as-usual that has driven congressional public approval ratings to historic lows.			
MARK TAPSCOTT is Executive Editor of the Washington Examiner.
