Lawmakers talk legislation in response to FOIA changes

Senators from both parties are unhappy with new Trump administration rules giving political appointees at two government agencies more power to review public information requests, and they say they may craft legislation to fix it.

The new rules for considering Freedom of Information Act (FOIA) requests at the Interior Department and Environmental Protection Agency have provoked complaints from the media and outside groups, and the senators say they go in the opposite direction in terms of providing access to government records.

{mosads}“In a self-governed society, the people ought to know what their government is up to,” said Sen. Charles Grassley (R-Iowa), who has led the charge on this issue and is considering legislation. 

“Transparency laws like the Freedom of Information Act help provide access to information in the face of an opaque and obstinate government. Unfortunately, a recent Supreme Court ruling and new regulations at EPA and the Department of Interior are undermining access,” he said in a late June speech on the Senate floor.

“The public’s work ought to be public. So, I’m working on legislation to address these developments and promote access to government records.”

Sen. Ed Markey (D-Mass.) is also considering legislation in response to the new rules.

“We are exploring our options, including legislative, to limit awareness review and supplemental awareness review,” a spokesperson for his office told The Hill.

The new rules ushered in at Interior and the EPA could give the agencies more flexibility to deny public document requests.

Interior during the government shutdown in December proposed a new rule that allows political appointees the option to see requests related to them before they are released. The new rule is called an “awareness review.”

The EPA at the end of June released a final FOIA rule that, among other things, expands the number of political appointees who can approve or deny FOIA requests. The agency argued the rule did not have to be subjected to a public comment period and that the changes were not substantial.

The same week, the Supreme Court issued a blow to FOIA advocates, ruling that private businesses did not have to divulge proprietary information under public information act requests regardless of whether there was any anticipated harm from the release.

The new FOIA rules at Interior and the EPA have alarmed environmental groups, who are calling for Congress to get involved.

“We’ve seen some really troubling attacks on transparency and the Freedom of Information Act, specifically of late,” said Emily Manna, a policy analyst at Open the Government, a group that’s been working with Grassley’s office on possible legislation.

“It’s important to us to try to achieve some bipartisan FOIA reform to achieve those issues. We’ve been working closly with FOIA champions in the Senate and House to come up with those solutions,” she said.

It’s not clear what other senators might be working with Grassley, though several of his colleagues signed on to a letter earlier this year decrying moves away from transparency in the FOIA process.

Grassley and Sens. Patrick Leahy (D-Vt.), John Cornyn (R-Texas) and Dianne Feinstein (D-Calif.) in March raised concerns about what they deemed a culture of secrecy coming from the federal government.

In a letter to the Justice Department’s Office of Information Policy, the senators highlighted a number of issues, including a lack of response from agencies over requests and month-long delays that often lead to FOIA lawsuits.

“We write to express concern about recent trends in FOIA compliance and reports indicating a continued culture of reflexive secrecy across the government,” the letter read.

Manna also noted the recent Supreme Court FOIA case as an issue they’d like to address in legislation. Additionally, she pointed to the fact that EPA did not provide a public comment period for its FOIA rule as a troubling trend.

“FOIA champions and folks who are supportive of FOIA transparency in general, share the concern that the Supreme Court decision is going to severely limit the kinds of information the public can get from private companies who are giving info to the federal government — that is very troubling,” she said.

It is not uncommon for the laws that set the basis for FOIA to be amended. Congress passed the latest version of the FOIA law in 2016. It was that bill that EPA is using as the basis for its updated FOIA regulations.

But reforming the FOIA rule to bind the influence of political appointees across government agencies could come in various forms, experts say.

“FOIA has specific deadline provisions. What a legislative fix could do is specify what conditions are not legal, for those deadlines to be met. They could specify that only under these exceptions could these deadlines be pushed back. A legislative fix could also explicitly provide for the fact that political appointees are not allowed to take part in FOIA determinations,” said Yvonne Chi, associate attorney for Earthjustice.

“It would definitely be an amendment to FOIA, those aren’t that uncommon,” Kevin Bell, staff counsel for the Public Employees for Environmental Responsibility, on what shape a bill would have to take. 

“With an amendment there’s a lot of ground to cover. I think a lot of people looking at this are thinking, ‘What is my wish list.’”

Bell said the fact that Republicans are involved show that support for open records laws spans both sides of the aisle.

“I think that Republicans in Congress are aware of the fact that no matter who is in control of the presidency, they want a strong Freedom of Information Act law. There is always something that you can be FOIAing someone for, whether you are left or right,” he said. 

“Once a new administration comes down the line sometime, I think that everyone knows that they are going to want to be able to ask the same questions and be guaranteed by the statute they will get answers.”