FOIA Reform: The Good, the Bad, and the Ugly


Earlier this week the Senate Judiciary Committee proposed it’s amended “FOIA Improvement Act of 2014 and it is set for passage through the lame-duck session of Congress. Upon its release, open government advocates and FOIA followers jumped to voice their opinion of the new proposed bill, and this FOIA enthusiast will do the same with the FOIA version of the “The Good, the Bad, and the Ugly.”


The Good:

  • Exemption 5 Changes – the exemption 5 records released after 25 years is a great idea and a big win for open government. Exemption 5 is under constant scrutiny and is considered by transparency advocates as the government’s secrecy exemption. It is believed to be an exemption that empowers the government to withhold whatever it wants; although I do not think that is the case, it is surely used more frequently than necessary.  This part of the bill will release records withheld under exemption 5 after 25 year.  I like this idea because it makes sense.
  • Foreseeable Harm Test – the proposed bill has a underlining sense of openness with this section. It states that those agencies must release records unless prohibited by law or if release would cause foreseeable harm.  This is extremely important because it establishes a theme of openness not just through an executive order, but through law.
  • GAO Audits – The Government Accountability Office auditing three or more agencies every two years is fantastic. There are surely three or more agencies that are behind the times when it comes to FOIA processing; or in other words, in need of FOIAXpress.
  • Bipartisanship!!!! – Yes it is possible, and it happened with FOIA reform! I do not know what is crazier, that there was a bipartisan bill proposed or that the bi-partisan bill was related to FOIA? Is FOIA the only thing Congress can agree on? My lucky day I guess.

The Bad:

  • Exemption 5 Changes – I know this was in the good section too; unfortunately the exemption 5 changes were not all good.  The original bill had more drastic changes, specifically the balancing test. The original bill proposed that public interest should be considered under all exemption 5 applications. Unfortunately, changes that would have been monumental regarding exemption 5 were ultimately cut from the new version.
  • Judicial FOIA Oversight – The original FOIA reform bill enabled federal judges to override agencies usage of exemptions.  This was not a dagger, but I liked the idea of increased oversight.
  • Government Wide Portal – this is a good idea, with bad aspects to it. The government does not have the best track record with creating portals and there are already a large number of FOIA portals out there. A better idea would have been to require that all agencies have portals; much easier, half way accomplished, and far less expensive.

The Ugly:

  • Nothing! Look any FOIA reform, especially if it supports transparency and openness is good. It may have some bad aspects or mark ups to the bill that were bad, but I cannot consider anything regarding FOIA reform to be ugly.