ASNE Welcomes the Introduction of New FOIA Legislation
An important bill was introduced in the Senate yesterday that addresses many recent concerns expressed by ASNE about implementation of the federal Freedom of Information Act (FOIA) by courts and executive branch agencies. A bipartisan coalition of Senators (Charles Grassley (R-IA), Patrick Leahy (D-VT), John Cornyn (R-TX) and Dianne Feinstein (D-CA) introduced the Open and Responsive Government Act (S. 2220).
The bill will “fix” FOIA in two very specific ways:
It will overturn the holding of the United States Supreme Court in Food Marketing Institute v. Argus Leader Media. In that case, the Court interpreted Exemption 4 of FOIA in a way that will allow various agencies to engage in expansive withholding of confidential commercial or financial information. ASNE joined an amicus brief filed with the Court in support of the Argus Leader which advocated for the adoption by the Supreme Court of the interpretation of Exemption 4, first created by the United States Court of Appeals for the District Court of Columbia in National Parks & Conservation Association v. Morton, which requires a demonstration that “substantial harm” to the competitive position of a private entity would ensue from the release of the information.
The bill also makes it clear that agencies can only withhold records if one of the nine listed exemptions applies. Agencies – most notably the Environmental Protection Agency via a formal change in its regulations – have recently begun taking an end-run around this requirement by declaring certain portions of records to be “non-responsive,” allowing for greater withholding (as opposed to a narrow redaction) and making it harder to appeal such a denial.
ASNE welcomes these quick responses to two actions that are clearly detrimental to transparency. We invite our members to assist in our efforts to pass this legislation.
Additional resources, including the bill text, a press release from the four co-sponsors, the amicus brief ASNE joined in the Supreme Court and a press release from the News Media Coalition for Open Government are provided below. You can also contact ASNE Legal Counsel Kevin M. Goldberg at goldberg@fhhlaw.com and 703-812-0462 if you need more information.
Text of the Open and Responsive Government Act
Senators' Press Release in Support of the Open and Responsive Government Act
News Media Coalition Statement in Support of the Open and Responsive Government Act
Supreme Court Amicus Brief in Support of the Argus Leader in Food Marketing Institute v. Argus Leader Media
Supreme Court Opinion in Food Marketing Institute v. Argus Leader Media