Here's a report from boing boing discussing the death of the FOIA amendments in the House of Representatives. The report discusses a Washington Post article that says that agencies, including the Department of Justice (DOJ) lobbied lawmakers to kill the bill because making the "foreseeable harm" test statutory would lead to more FOIA litigation.
This argument is merely that, an argument. There is no proof that making the standard statutory would lead to more FOIA litigation. FOIA litigation is expensive for requesters to bring - the cost of filing a suit is $450 plus the cost of counsel. In fact, the opposite argument could be made - by making the standard statutory, less litigation would occur because agencies would make the analysis and would release more material.
The "foreseeable harm" test is DOJ's official FOIA policy. Thus, by using it as a reason to kill FOIA legislation, DOJ is repudiating its own policy. DOJ's official position has not yet been released to the public. The new Congress should hold hearings and make DOJ FOIA officals swear under oath what their position is, rather than allowing back channel maneuvers to kill bipartisan legislation.
The Columbia Journalism Review has this on the mainstreams press abetting Congress in failing to pass FOIA legislation this session.
Big media and the FOIA have always had a strange relationship. They don't often use the FOIA because of time delays in getting information. They don't often sue because of the perceived costs in the litigation (big media uses big law which costs more than those of us independent attorneys who regularly practice FOIA law). Thus, big media generally isn't interested in FOIA issues which of course is not what logic tells you because one would think that big media is based on information. However, these days as big media seems to be more interested in the story of the moment (that big Ebola outbreak coming to America - remember that one) or the Kardashian family, the FOIA has very little relevance to it. As such, big media paid no attention to the recent FOIA reform failure even if some attention to it may have prompted Speaker Boehner (R-OH) to bring it to the floor while the House was in session.
Basically, big media's assistance in the death of FOIA reform is not a surprise as its in line with much of where it has been heading for the last 25 years. Its just too bad Aaron Sorkin wasn't writing the script.
Assuming the House of Representatives doesn't have to come back to pass any budget related matters, it is likely that the FOIA bill is dead for this congressional session. Newsweek has this on the bill.
Advocates of the bill have been saying it is unlikely that the bill can pass during the next Congress, but I'm not entirely sure of that -- past FOIA bills have had to come up in multiple congresses before passing.
Either way, the fact that the bill was very close and was tabled because of the influence of lobbyists that found a problem in the legislation that didn't even exist is frustrating not only for those who wanted the bill to pass but for those who want the American democratic process to be a shining light for the world - not an embarrasment.
It looks like a FOIA bill passing this session is a slim possibility. OpentheGovernment.org has this update, in which they cite Speaker of the House Boehner (R-OH) saying "he has no knowledge of the plan" to pass the FOIA bill.
The best hope for this bill would be a government shutdown that causes Congress to stay in session - I'm not saying that is a good thing for the country overall, its just the only way a FOIA bill could pass. Call it a FOIA hail mary.
This is breaking - Freedominfo.org is reporting that unnamed anonymous banking lobbyists are urging certain House members to stop a vote on the FOIA amendments. The bill needs to be placed on the schedule today or it dies for the year.
A few points to ponder - the FOIA bill does absolutely nothing to change the way banking material is treated under the FOIA. If anything, the bill is a lost opportunity to loosen up what is treated as bank information under FOIA exemption 8. This exemption is used much more since the banks (who are the ones allegedly behind stopping the bill) helped usher in the Great Recession.
Further, whether you agree with the amendments to the FOIA or not, the use of unnamed lobbyists to stop a transparency bill is not only ironic, it is an embarrasment to our system of government.
Open the Government.org has this on the FOIA legislation. The House of Representatives which is meeting this week for the final time during this session must place it on its schedule and then actually vote on it for it to pass. The bill is up among the budget agreement, which must also be passed, so its not a sure thing.
If the bill passes, the next Congress will have to start the entire process over.
I'm blogging today from Ottawa, Canada where I'm representing the American Society of Access Professionals at the Canadian Access Professional Association yearly meeting. Meanwhile, south of Canada, the battle over the Senate's FOIA bill continues to heat up.
Josh Gerstein of Politico has this article about independent agencies such as the FTC and the SEC talking Sen. Jay Rockefeller (D-WV) into placing a hold on the FOIA bill during his last days of being a Senator.
According to Gerstein, these agencies have come up with the theory that if the new law is passed and a court could review an agency's foreseeable harm decision it would somehow allow large corporations to tie up federal agencies in FOIA litigation and cause them to lose exemption 5 privileges (attorney-client, attorney work product and deliberative process).
It would have been nice if these agencies had actually aired their views during the months that the bill was pending. Of course, if this would have been done, it is very likely that this theory would have been shot down because if there is an actual foreseeable harm in the material, it need not be released. Further, since 2009, this standard has been in place at the administrative level and the Department of Justice shouldn't have been defending agencies that were using FOIA exemptions just because they could, not because the release of material would cause foreseeable harm to some agency operation. Of course the reason this standard is in the bill is that many agencies ignore the Attorney General's FOIA guidelines and the Senate bill wants to strengthen what most in the FOIA community believe is a good idea.
Outgoing West Virginia Senator Jay Rockefeller has issued this statement about why he has put a hold on the FOIA bill:
“I have a long record of support for open government and the FOIA process. 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.”
This bill has been around for months and Sen. Rockefeller never uttered any statement until now. If he has legitimate concerns he should have announced them previously or he should allow the bill to be debated. In that debate he can explain what his problems are and identify these "experts in the federal government" that he cites in his press release.
If one recalls, ex-OMB official Cass Sunstein made negative comments about the bill last summer. My belief is that Rockefeller is acting on the behalf of some in the Executive Branch that don't want this bill to pass.