Saturday, December 6, 2014

Retiring Sen. Rockefeller Stops Bipartisan FOIA Bill, Holds Its Fate in His Hands

Sen. Jay Rockefeller put a halt to a bipartisan FOIA bill that would make government more open and accountable. If the bill is not approved by the Senate on Monday, it will die. Unsurprisingly, many people have posted on the senator's Facebook page, tweeted at @SenRockefeller, and called his office (202-224-6472).

The FOIA bill, which earned unanimous bipartisan support from the Senate Judiciary Committee and every other member of the Senate, fixes systemic weaknesses in the Freedom of Information Act. Under House rules, after Monday there will be insufficient time for the House to consider the bill. This is true even though the House already passed a similar version of FOIA reform and is expected to readily pass the Senate bill.

Many are asking Rockefeller to release the hold, saying the bill is essential to open government and that Sen. Rockefeller, if he had concerns, should have voiced them long ago. His office, which was unresponsive all day Friday after it became known on Thursday that Rockefeller was responsible for the hold, put out a statement at 6:30 pm that did little to explain his concerns.

The FOIA Improvement Act (S. 2520)
  •  requires federal agencies to adopt a presumption of openness, 
  • strengthens the government office that assists with dispute resolution, and 
  • puts a 25-year limit on agencies withholding materials they deem to be deliberative process.
The legislation was endorsed by more than 70 organizations from across the political spectrum.

Rockefeller's statement raises concerns about "unintended consequence of harming our ability to enforce the many important federal laws that protect American consumers from financial fraud and other abuses," but fails to lay out specific concerns or identify problematic provisions of the bill. While he makes no public mention of this, it is believed Rockefeller is concerned that the Federal Trade Commission would no longer be able to keep confidential information protected under attorney client privilege or deliberative process privilege. If so, this fear is unfounded.

The bill reported by the Senate Judiciary Committee does nothing to alter how attorney client privilege or attorney work product privilege functions, unlike an earlier versions that required the public's interest to be taken into account. It does impose a sunset for those privileges for FOIA purposes at 25 years under exemption b(5), but that should have no effect on contemporary investigations. Moreover, Courts have long recognized the importance of protecting agency information.

It is true the legislation requires agencies seeking to withhold information they have discretion to release to articulate a foreseeable harm before they can hold back. However, that has been the standard since 2009 when Attorney General Holder issued a memo imposing it. President Clinton had the same standard. The codification of this rule prevents a rollback to the Bush-Cheney years, when every possible excuse was used to withhold information.

Rockefeller, in his statement, also expressed concern the changes "would potentially give defendants news ways to obstruct and delay investigations into their conduct." This appears to be pulled out of thin air. The opposite is true. We have seen agencies destroy investigative records to prevent being held accountable for failing to investigate. Examples abound, including the Madoff $65 billion Ponzi scheme. The same could be true of the FTC. In its current form, the bill would not address this problem (although it would have in a stronger, earlier version.)

A handful of journalists are covering this story, with notable mentions including Alex Howard, BoingBoing, Roll Call, The Hill, and the Charleston Daily Mail. More information is available from the Sunlight Foundation, the Project on Government Oversight, and the FOIA blog.