Senate Judiciary approves bill to codify ‘presumption of openness’

President Barack Obama’s first-day-in-office memo calling for a more open and transparent government may be getting a boost from the Senate.

The Senate Judiciary Committee today unanimously passed a bill to codify the White House’s “presumption of openness” concept when it comes to federal information.

The committee passed by voice vote a manager’s amendment to the Freedom of Information Act Improvement Act (S. 2520) that would codify the Obama administration’s openness goals and mandate agencies release information more proactively.

“This bill is a step in the right direction to increase government accountability and transparency,” said Sen. Charles Grassley (R-Iowa), ranking member of the committee and a co-sponsor of the bill, Thursday during the committee markup. “By codifying presumption of openness into law, agencies won’t be able to hide behind an exemption for fear of embarrassment. Instead, agencies must disclose information unless they reasonably foresee a disclosure would harm an interest the exemption protects. Thanks to this bill, we will finally help secure the accountability and transparency that FOIA as designed to accomplish.”

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Grassley said over the last almost six years agencies haven’t done a good job in following Obama’s directive, and too often have withheld information for no good reason.

In fact, the National Security Archive at The George Washington University found in March 2013 that 59 out of 100 agencies have not implemented the 2009 guidance in their FOIA regulations from Attorney General Eric Holder.

Additionally, a March 2014 report by the Center for Effective Government evaluated 15 agencies responsible for 90 percent of FOIA requests, and found 11 of 15 earned a D or F grade when it comes to fulfilling these applications.

The bill also would require the government to develop and/or use one central portal for citizens and others to submit a FOIA request through. It expands the authority of agency chief FOIA officers and creates a chief FOIA officers council to develop recommendations to increase compliance.

The bill also would require the Government Accountability Office to issue a report on three or more agencies every two years on their efforts to reduce the FOIA backlog.

“Even if not as grand as its original incarnation, the bill, post-manager’s amendment, is a much-needed, strong reform of one of America’s most important transparency laws,” wrote Sean Vitka, the federal policy manager at the Sunlight Foundation, in a Nov. 18 blog post. “The good news, amendments side, is that wherever there may be compromises in this bill, it’s not a bill built on sacrifices. In other words, everyone agrees a step forward is necessary, but not everyone agrees how big a step. What that means for the FOIA Improvement Act is that even after losing some of its provisions, the public is still gaining something significant.”

Grassley said the bill strikes the proper balance in giving agencies the flexibility needed to process requests.

Sen. Patrick Leahy (D-Vt.), chairman of the committee, said both parties can agree that a strong FOIA program is good for the government.

The Obama administration’s dedication to open government has been mixed.

On one hand, officials have asked agencies to expand their efforts. Just last March, the Office of Science and Technology Policy told agencies to rededicate themselves to open government. Former federal Chief Technology Officer Todd Park sent a memo to agencies asking for bold initiatives and updates to their open government plans.

But at the same time, the administration has come under fire for its lack of transparency.

In September, a coalition of 25 good government groups wrote to Obama urging him to withdraw or, at the very least, clarify a recent memo that requires agencies to consult with the White House Counsel’s Office on any document request that may involve records implicating “White House equities.”

OpenTheGovernment.org says “White House equities” is an undefined term that could affect agency decision-making over the release of documents.

Patrice McDermott, executive director of OpenTheGovernment.org, lauded the Senate’s bill, saying the FOIA Improvement Act is common sense bipartisan legislation.

The House passed a similar bill in February, H.R. 1211 sponsored by Rep. Darrell Issa (R-Calif.).

The Senate Judiciary Committee now sends its bill to the full Senate for a vote.

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