[Congressional Record Volume 160, Number 149 (Tuesday, December 9, 2014)]
[Senate]
[Pages S6442-S6443]
FOIA IMPROVEMENT ACT
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent to engage in
a colloquy with Senator Leahy of Vermont, chairman of the Senate
Judiciary Committee, regarding S. 2520, the FOIA Improvement Act of
2014.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. I thank Senator Leahy for attempting to address my
concerns about this bill. I thank his committee staff for working with
my committee staff to insert clarifying report language.
Mr. LEAHY. I would like to acknowledge the chairman of the Senate
Committee on Commerce, Science, and Transportation for highlighting
important concerns of the agencies his committee works with closely.
This legislation seeks to further the goal of government transparency;
but we also understand the need for government agencies to dutifully
and carefully fulfill their responsibilities.
Mr. ROCKEFELLER. From the beginning, I have recognized that this bill
would make important changes to the Freedom of Information Act. My
concerns have been rooted in the possible unintended consequences this
bill would have on consumer protection. I was concerned this bill would
make it harder for our consumer protection agencies to bring
enforcement actions against corporate wrongdoers.
Specifically, I am concerned that requiring government law
enforcement agencies to show foreseeable harm that is not ``speculative
or abstract'' when invoking FOIA exemptions for attorney-client, work-
product, and deliberative process privileges will undermine law
enforcement efforts.
Hundreds of years of American legal tradition has generally protected
work-product documents and attorney-client communications from the
discovery process in civil litigation. Further, the deliberative
process privilege has allowed government agencies' law enforcers to
freely exchange ideas and legal strategies as part of their internal
decision making process.
I am concerned that the bill could have a ``chilling effect'' on
internal communications and deliberations of agencies' law enforcement
personnel who are preparing law enforcement actions against alleged
wrongdoers, in order to avoid the prospect of increased litigation.
We do not want to hinder the robust, internal exchange of rigorous
ideas and legal strategies within government agencies when they are
bringing enforcement actions.
Given this, courts should review agency law enforcement decisions on
the new foreseeable harm standard under an ``abuse of discretion''
standard.
Mr. LEAHY. At Senator Rockefeller's request we have included language
in the committee report on the abuse of discretion standard and its
application to make clear that it is the intent of Congress that
judicial review of agency decisions to withhold information relating to
current law enforcement actions under the foreseeable harm standard be
subject to an abuse of discretion standard.
Mr. ROCKEFELLER. Furthermore, if we are going to potentially burden
our government agencies with increased costs that will be associated
with complying with the bill, then I think Congress should also provide
these agencies with sufficient funding to deal with what is sure to be
an increased workload.
While I still have concerns about this bill's effect on consumer
protection, I think the accommodation made by Senator Leahy will help.
I thank him for inserting clarifying language in the report with regard
to this congressional intent on review of information withheld under
the foreseeable harm standard.
Mr. JOHNSON of South Dakota. Mr. President, I ask consent to engage
in a colloquy with Senator Leahy, chairman of the Senate Judiciary
Committee, regarding important aspects of S. 2520, the FOIA Improvement
Act of 2014.
While I support the ultimate goal of this legislation, which seeks to
increase government transparency, as the chairman of the Senate Banking
Committee, I am also mindful of the need for government agencies to
dutifully and carefully fulfill their oversight responsibilities of our
Nation's financial institutions and the health and welfare of our
financial systems at-large. Financial regulatory agencies are tasked
with ensuring the safety and soundness of the financial system,
compliance with Federal consumer financial law, and promoting fair,
orderly, and efficient financial markets. A critical component of
effective oversight is the ability of a financial regulator to have
unfettered access to information from a regulated institution. A
financial institution should not have to fear that its regulator will
be unable to protect the institution's confidential information from
disclosure. Since the passage of the Freedom of Information Act,
Congress has recognized the importance of protecting this type of
supervisory information as evidenced specifically in 5 U.S.C. Sec.
552(b)(8), commonly referred to as Exemption 8, and more generally in
other exemptions. It is my understanding that nothing in S. 2520 is
intended to limit the scope of the protections under Exemption 8, or
other exemptions relevant to financial regulators; nor is the bill
intended to require release of confidential information about
individuals or information that a financial institution may have, the
release of which could compromise the stability of the financial
institution or the financial system, or undermine the consumer
protection work by the regulators. Given that the release of
confidential or sensitive information relating to oversight of
regulated entities could cause harm to such entities, individuals, or
the financial system, a financial regulatory agency could reasonably
foresee that disclosure of such information requested under FOIA may
harm an interest protected by Exemption 8. This is precisely why
Congress continues to provide these statutory exemptions.
Mr. LEAHY. I thank Senator Johnson for his remarks and for his
interest and support for this legislation. I agree that it is important
to ensure that our financial regulators are able to do the work
required to maintain the safety and soundness of our financial
institutions. I also agree that the free flow of information between
regulators and financial institution is important to this process.
Exemption 8 was intended by Congress, and has been interpreted by the
courts, to be very broadly construed to ensure the security of
financial institutions and to safeguard the relationship between
financial institutions and their supervising agencies. The proposed
amendments to the Freedom of Information Act, FOIA, are not intended to
undermine the broad protection in Exemption 8 or to undermine the
integrity of the supervisory examination process. Moreover, much of the
information that the government is permitted to withhold under
Exemption 8, is also protected under Exemption 4, which exempts from
disclosure commercial and financial information that is privileged or
confidential. Exemption 4 covers information prohibited from disclosure
under the Trade Secrets Act and similar laws, and as such does not
provide for discretionary disclosure under FOIA. As with other
exemptions that are based on separate legal restrictions, it is
understood that the foreseeable harm standard will not apply to most of
the information falling under Exemption 4. I will address these
concerns, and I appreciate all the time and attention the Senator from
South Dakota has given to this important legislation.
Mr. JOHNSON of South Dakota. I thank the Senator from Vermont for his
work on this important matter and for working with me to clarify the
scope of this bill. I hope the Senator from Vermont continues to work
on these issues with the agencies to ensure that this new standard will
not serve to undermine the broad protections currently afforded to
confidential supervisory information and in turn undermine the
cooperative relationship between regulators and their supervised
institutions.
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