FOIA: What is the Government Hiding?

The sheep keep saying they don’t care about NSA spying because they have nothing to hide.  By that measure the US government is acting like a full-blown terrorist.  What don’t they want us to know?

During the 113th Session of Congress, very good Freedom of Information Act bills passed the House with 410 votes and passed the Senate via unanimous concent only to die.

Even more depressing: FOIA bills dying despite receiving unanimous votes is not an abnormality, it’s a trend.

The Senate Judiciary Committee has now passed FOIA reform three times  since 2007 without it becoming law.  In 2010, the Faster FOIA bill passed the entire Senate by unanimous consent, only to die in the House.  In 2011, the Faster FOIA bill again passed out of the Senate by unanimous consent and died an even more ignoble death –Speaker Boehner gutted it and replaced it with the last-minute, secretly-drafted “Budget Control Act of 2011.″

The death of the 2014 bill stings even worse.  It was better-crafted than each of the previous three and was drafted over a two year process in conjunction with both the Senate and the House.  Unlike previous FOIA bills, Representatives Daryl Issa (R-Ca) and Cummings (D-Md) acted first and passed the Freedom of Information Act Implementation Act in February with 410 votes and none opposing.

The Senate version, the FOIA Improvement Act, largely mirrored the House bill although in one key respect it was much stronger.  It made it harder for agencies to apply Exemption Five, an exemption which allows the withholding of “inter-agency or intra-agency memorandums or letters.”  While this exemption is often used correctly to preserve candid communications between government employees, its broad wording and ease of applicability has led to extreme (even offensive) overuse, including censoring information on DOJ Nazi hunting (and protecting), a CIA history of the Bay of Pigs invasion, documents on US policy during the Rwandan genocide, and many more.  President Obama’s adviser John Podesta has even called it the “withhold it because you want to” exemption.

Senators Leahy (D-Vt) and Cornyn (R-Tx) and their staffs worked tirelessly to secure unanimous approval from the Senate Judiciary Committee.  Then, the two negotiated successfully to get several (my count is four) Senators to lift their holds on the bill.  Most, though not all, of the negotiations were conducted privately.   Senators’ concerns over the bill’s cost and potential harm to banks and regulatory agencies were assuaged.  The bill passed the  Senate via unanimous consent.

Bouyed by the 410 unanimous votes for the bill, and pledges from the offices of the House sponsors that the Senate version (with House input including the concept of an online FOIA portal) would pass, open gov advocates were optimistic for genuine FOIA reform.  With hindsight, one newspaper’s headline on FOIA reform comes close to evoking “Dewey Defeats Truman.”

Open government advocates became increasingly worried as a vote for the bill was not placed on the Leadership Calendar on Tuesday and Wednesday.  At crunch time, on the morning of Thursday December 11, Speaker John Boener (R-Oh) told a reporter with the Columbus Dispatch, “I have no knowledge of what the plan is for that bill.”  However, Senator Leahy’s office has said that it had been in communication with the Speaker’s office on the bill, so he certainly had some knowledge.  Representatives Issa and Cummings (who agree on very little) put out a statement calling for the bill to come to a vote, and their staffers were pushing the Speaker’s office for one. …

Boehner is now the house speaker, unless he’s voted out of that position on tuesday.   Gohmert of texas is running against him.  I don’t know much about Gohmert, but stirring up the hierarchy  in the house can’t be bad.

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