UPDATE — December 8, 2014, 5:21pm ET: Senator Jay Rockefeller removed his hold on the bill following discussions with Senate Judiciary Committee Chairman Patrick Leahy. The bill still needs to pass the House; if it does, it will be sent to President Barack Obama to sign into law.
A bill that would overhaul the Freedom of Information Act (FOIA) is on the brink of collapse after a Democratic senator raised concerns about provisions that would force government agencies to be more transparent.
Last week, Senator Jay Rockefeller of West Virginia placed a hold on the FOIA Improvement Act, one of the few pieces of legislation that has bipartisan support in Congress, claiming that unnamed "experts" with whom he has consulted told him parts of the bill would "greatly aid corporate defendants and undermine law enforcement efforts," one of his staffers told VICE News.
At issue is the legislation's changes to Exemption 5, which applies to government records that are part of a behind-the-scenes "deliberative" decision-making process and covers any "inter-agency or intra-agency memorandums or letters," drafts, and attorney-client records. Transparency advocates say it is one of the most abused of FOIA's nine exemptions; the government often invokes it to justify the withholding of records.
Last month, the legislation's co-sponsors Senator Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, and his Republican counterpart John Cornyn, unveiled a markup of the bill that removed one of Exemption 5's restrictions. The removal would mean that records government agencies withhold under Exemption 5 no longer remain permanently secret, as required under the current law. Instead, those records would be released after 25 years.
In 2012, according to Leahy, government agencies cited Exemption 5 more than 79,000 times, a 41 percent increase compared with the previous year. Last year, according to statistics compiled by the Associated Press, the use of Exemption 5 reached an all-time high: 81,752 times, accounting for 12 percent of all the open-records requests government agencies processed in 2013 that resulted in denials.
The proposed changes are not supported by numerous government agencies — notably the Federal Trade Commission (FTC) — according to open government advocates, who allege that agency officials recruited Rockefeller to stymie passage of the bill just as it was headed for a full vote in the Senate.
"Senator Rockefeller's concerns with provisions in [the FOIA bill] are based on conversations his staff has had with government experts at various agencies charged with consumer protection," a Rockefeller aide told VICE News.
The FTC would not return calls for comment.
In the past, Rockefeller has advocated on behalf of the FTC. The transparency group CauseofAction released communications between the FTC and Rockefeller's staff unrelated to FOIA reform that appear to show a close relationship between the senator and the agency.
Rockefeller, who is retiring at the end of this Congressional session, issued a statement last Friday via his Facebook page, explaining that he has a "long record of support for open government and the FOIA process." He claimed that the bill, in its current form, "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," he added.
Hundreds of comments on Rockefeller's Facebook page since he released his statement have taken the senator to task over his attempts to thwart efforts to make the government more transparent. People have also bombarded him with tweets demanding that he lift his hold on the bill.
An aide to Leahy said Rockefeller's concerns come as a surprise.
"Friday was the first we have heard of these concerns," an aide to Leahy told VICE News. "The FOIA Improvement Act, which was introduced in June, was approved unanimously by the Judiciary Committee on November 20. It has the support of more than 70 government transparency groups and is the result of months of consultation with the administration and a wide range of stakeholders."
The Rockefeller aide would not disclose the identity of the government agencies or experts with whom Rockefeller says he spoke. In a lengthy background statement provided to VICE News, the aide acknowledged that the FOIA bill would promote greater transparency, but added that the senator is concerned that if certain records are made available under the FOIA reform bill, "corporate defendants could potentially do through FOIA what they are unable to do through the discovery process. This would be a perverse outcome."
"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.
The aide added:
The Senator is concerned about provisions in S. 2520 that would codify a "foreseeable harm" standard in statute that may favor corporate wrongdoers. That is, the bill would statutorily require government law enforcement agencies to withhold documents from a FOIA request only if they first establish that "the agency reasonably foresees that disclosure would harm an interest protected by" the exemption invoked. Consequently, the bill could expose law enforcement agencies to needless litigation and drain their already limited resources in defending FOIA decisions that have long been invoked for legitimate law enforcement purposes (It is worth noting that, as a discretionary matter, agencies still often turn over such information in FOIA requests as long as it does not harm their law enforcement efforts).
Consequently, [Senator Rockefeller] believes this new foreseeable harm standard would likely have a chilling effect on internal communications and deliberations and could limit internal debating on law enforcement strategy, deter agency employees from providing candid advice, and lower the overall quality of the government decision-making process — all which are absolutely vital to effective law enforcement.
In a statement provided to Leahy and shared with VICE News, Miriam Nisbet, the founding director of the Office of Government Information Services (OGIS), which acts as the FOIA ombudsman, said nothing in the FOIA bill would have the "chilling effect" on internal deliberations Rockefeller fears, and that under the Act, the government's burden for defending a FOIA lawsuit would be the same as it has been under the Obama and Clinton administrations.
"I think one of the more disturbing things about Senator Rockefeller's statement is how vague it is, and the reference to unknown 'experts," said Amy Bennett, assistant director at OpenTheGovernment.org. "This bill has been vetted by lots of people who have decades of experience litigating FOIA cases — inside and outside the government — and working on FOIA policy…. There is nothing in the bill that would allow defendants to delay or obstruct investigations."
Rockefeller's aide said the senator and his staff "are continuing to discuss their concerns with the Judiciary in an effort to find a path forward and pass the bill." But Bennett said Rockefeller's last-minute hold "can only serve to kill" the bill. The Senate adjourns for the rest of the year later this week.
Follow Jason Leopold on Twitter: @JasonLeopold
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