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Senators push major FOIA change

Two senators are proposing the most significant reforms to the Freedom of Information Act in four decades, including altering a key exemption that government agencies frequently use to deny access to a vast swath of executive branch documents.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and fellow panel member Sen. John Cornyn (R-Texas) introduced legislation Tuesday that would allow the press and other public requesters to pierce the deliberative process privilege, a broad protection the courts give to records detailing the policymaking process as well as virtually any action leading up to any kind of decision by agency officials. In recent years, the provision — known as Exemption 5 — has been ridiculed by transparency advocates as the "withhold it because you want to" exception to FOIA.

The legislation would also shut down that exemption after 25 years. Federal agencies have sometimes used it to withhold records created 40 years ago or more. However, with respect to presidential records, similar protection falls away after just 12 years unless a formal executive privilege claim is made. (Here, via Leahy's office, are a rundown of the bill and the full text.)

"The Freedom of Information Act is one of our Nation's most important laws, established to give Americans greater access to their government and to hold government accountable," Leahy said in a statement stressing the bipartisan nature of the effort to put more teeth in FOIA. "Both Democrats and Republicans understand that a commitment to transparency is a commitment to the American values of openness and accountability."

"Open government is the hallmark of a healthy democracy, and the American people have a fundamental right to know what their government is doing," added Cornyn, an advocate for FOIA and similar legislation since his days as Texas attorney general. "I'm pleased to once again team up with Senator Leahy to strengthen FOIA and promote greater transparency across the board."

Despite President Barack Obama's pledge to run the most transparent administration in history, use of Exemption 5 has risen in recent years to cover 12 percent of all requests.

The Leahy-Cornyn bill would require a judge to balance the interest of protecting the decision-making process with the public interest in disclosure. Courts are not currently permitted to make such a balancing in FOIA, although they do so when applying the same deliberative process privilege in other types of litigation affecting government records. The same balancing would also be required with respect to materials prepared by government attorneys. The law would also allow requesters a chance to pierce the veil of attorney-client privileges, but only in cases where they can show a judge "compelling" public interest in the material.

In February of this year, the House unanimously passed, 410-0, FOIA reform legislation that also sought to rein in withholding of records by government agencies. However, openness advocates say the approach in that bill is less likely to unlock federal records than the Senate bill.

The Freedom of Information Act was passed in 1966, but was highly dysfunctional in its early years. In a Watergate-driven reform drive, Congress overhauled the measure in 1974, drawing a veto from President Gerald Ford. Lawmakers promptly overrode Ford's veto.