SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 50
June 14, 2016

Secrecy News Blog: http://fas.org/blogs/secrecy/

CONGRESS PASSES FOIA IMPROVEMENT ACT

The House of Representatives yesterday approved the Freedom of Information Act Improvement Act, which had previously been adopted by the Senate. If signed by President Obama, as expected, it will strengthen several provisions of the FOIA and should enhance disclosure of government records.

The bill "reaffirms the public's right to know and puts in place several reforms to stop agencies from slowly eroding the effectiveness of using FOIA to exercise that right," said Rep. Mark Meadows (R-NC).

"The most important reform is the presumption of openness," according to Rep. Meadows. "Before claiming an exemption [from disclosure under FOIA], agencies must first determine whether they could reasonably foresee an actual harm."

"The bill would also put a 25-year sunset on exemption 5 of FOIA, the deliberative process exemption," added Rep. Carolyn Maloney (D-NY). "It would modernize FOIA by requiring the Office of Management and Budget to create a central FOIA Web site for requesters to submit their request, making it more efficient and accessible to the public."

"This bill would strengthen the independence and the role of the Office of Government Information Services [the FOIA ombudsman]. OGIS has served a critical role since it was formed in response to the last FOIA reform Congress adopted in 2007," she noted.

The bill does not address structural challenges facing FOIA, which is designed to serve individual requesters, not the public as a whole. Nor does the bill provide any additional resources for implementing FOIA, which currently consumes hundreds of millions of dollars per year with ambiguous results.

"We have a whole process and money and people devoted to FOIA and I just don't think it's getting to the heart of what FOIA's about," said Meredith Fuchs, former General Counsel of the Consumer Financial Protection Bureau, last March. "I don't think it's the real way to keep government accountable."

Such criticism from a government official would be unremarkable, except that Ms. Fuchs used to be a litigator for FOIA requesters against government agencies (and years ago she contributed an amicus brief for one of my own lawsuits). She spoke at a fascinating session of the Freedom of Information Day 2016 conference at the Newseum that featured former non-governmental FOIA advocates who have gone into government service.

Tom Blanton of the National Security Archive presented a ringing endorsement of the FOIA's efficacy as a tool for government accountability at a recent Columbia Law School conference on the fiftieth anniversary of FOIA (beginning around the 50' mark).

Passage of the FOIA Improvement Act was hailed yesterday by Senator Patrick Leahy, the National Security Archive, Openthegovernment.org, the Project on Government Oversight, and the Sunshine in Government Initiative, among other supporters of the measure.

FUNDING OVERSEAS CONTINGENCY OPS, AND MORE FROM CRS

The use of the "overseas contingency operations" budget construct to circumvent limits on discretionary spending was examined in a report from the Congressional Research Service published yesterday.

"Some DOD officials argue that this funding approach is essential to enable a timely military response to a dynamic enemy operating in a complex battlespace," the CRS report said. "Critics however, have described the DOD's continued use of the OCO/GWOT account as creating a 'slush fund' for military spending." See Overseas Contingency Operations Funding: Background and Status, June 13, 2016:

Other new and updated reports from the Congressional Research Service include the following.

Athletic Footwear for the Military: The Berry Amendment Controversy, CRS Insight, June 10, 2016:

The Open Skies Treaty: Issues in the Current Debate, CRS Insight, June 10, 2016:

FY2017 Appropriations for the Department of Justice, updated June 9, 2016:

Membership of the 114th Congress: A Profile, updated June 10, 2016:

Mass Shootings and Terrorism: CRS Products, June 13, 2016:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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