A retiring Democratic senator is making the last act of his career single-handedly killing a bill that would make government less secretive and more accountable to citizens by strengthening the Freedom of Information Act.
Sen. Jay Rockefeller, D-W.Va., placed a hold on the FOIA Improvement Act, which every member of the Senate Judiciary Committee approved. The measure is co-sponsored by the committee’s chairman, Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas.
“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,” Rockefeller said in a statement.
The House unanimously approved a similar measure earlier this year.
Rockefeller would not name any specific experts, but the agencies reportedly include the Federal Trade Commission. A FTC spokesman did not respond to a request for comment.
Other senators were surprised when word first spread of Rockefeller’s hold because he had not approached them about making changes to the bill. The measure must be approved before the current lame duck Congress ends.
“All Republicans have signed off on it,” said a Democratic Judiciary Committee aide who requested anonymity . “Friday was the first we had heard from Rockefeller. It’s important to understand that this bill just puts into law the existing executive guidance.”
The measure Rockefeller is blocking would limit reproduction fees that can be charged by federal officials responding to FOIA requests, requires federal agencies to update their FOIA procedures to conform with rules Congress approved in 2007 and, most importantly, establishes limits on the most often used exemption to withhold public documents from release.
Exemption five of the FOIA is the most frequently invoked of the 1966 law’s nine exemptions that allow federal officials to withhold government documents from public release. Known informally as the “pre-decisional” exemption, exemption five covers documents created as part of a decision-making process but before an official decision is made.
A Rockefeller aide said the West Virginia Democrat is worried that the standards will “deter agency employees from providing candid advice, and lower the overall quality of the government decision-making process” and “aid corporate defendants and undermine law enforcement efforts.”
The legislation would allow agencies to withhold information if they could articulate “foreseeable harm” to its legal strategies that could come from releasing it.
“In order to gain an advantage in litigation, corporate defendants could inundate law enforcement agencies with FOIA requests and subsequently sue those agencies for not adequately showing foreseeable harm when they rightfully invoke the attorney-client privilege, work product, or deliberative process exemptions,” the aide said.
Patrice McDermott, executive director of OpenTheGovernment.org, wrote that “there is nothing in this legislation that provides defendants ways to obstruct or delay investigations.”
The bill encourages agencies to be open, places an emphasis on electronic records, requires agencies to proactively disclose information that is frequently requested and sets up a voluntary mediation system as an alternative to litigation.
“Senator Rockefeller should not remain the sole holdout that stops our ability to make the federal government more open and accountable,” McDermott wrote.
She said an executive order already imposed effectively the same criteria, and the legislation would merely ensure that future presidents could not roll back that standard.
Government records can challenge the status quo and reveal unsavory information about bureaucrats, politicians and government programs.
A Washington Examiner analysis of federal records earlier this year, for example, found that Rockefeller traveled to the state he represents on average only 11 times a year — less frequently than most other senators — even though West Virginia almost shares a border with D.C.
Instead, he lives in one of the largest private residences in the city, and doesn’t go to the mountainous rural state even during recesses. His office said he had no town hall events in the state, where citizens could pepper him with questions, at all during the 2014 August recess, when there was no reason to be in D.C.
The records also showed that when he does go to West Virginia, he takes a private plane, even though there are multiple extremely cheap commercial flights each day. He bills the flights to taxpayers even though he is one of the wealthiest members of Congress.
The holdup of the FOIA bill comes the same week as a Senate Intelligence Committee report on torture by the CIA is set to be released, despite warnings from critics who claim release could lead to lethal consequences for Americans by revealing sources and methods used U.S. intelligence agencies in the war on terrorism, including compromising countries providing covert assistance to the U.S. war effort.
Rockefeller has been outspoken about the need to release that information as a deterrent against illegal activities by U.S. intelligence agents in the future.
UPDATE: Rockefeller drops hold, FOIA reform passes Senate
The Senate unexpectedly approved the bill without objection Monday evening. A Judiciary Committee aide said there were no changes to the bill to appease Rockefeller, and the “Senate passed the committee-reported bill.”
