Over time, federal agencies have flipped the Freedom of Information Act on its head. Congress clearly intended the FOIA to be a tool for the public to pry information out of federal agencies.
In recent years, however, agencies have blatantly abused opaque language in the law to keep records that might be embarrassing out of the publics hands forever.
One of the clearest examples of this problem has been playing itself out in court rooms over the last few years as the Central Intelligence Agency has successfully argued against the release of a 30-year-old draft volume of the official history of the 1961 Bay of Pigs disaster.
There are few records in the federal government that are seen to merit such secrecy. This draft CIA history is afforded stronger protections than the presidents records, or even classified national security information. Members of the public are able to access similar records generated by the White House as early as 12 years after the president leaves office. Even most classified national security information is automatically declassified after 25 years. Yet, the CIA continues to insist that releasing a draft volume of a history of events that occurred more than 50 years ago, and are already generally understood by the public, must be kept secret.
How is this possible? The record can continue to be withheld because it fits under the rubric of the FOIAs exemption for inter- and intra-agency records.
While this exemption was intended in part to allow agency officials to give candid advice before an agency has made an official decision, agencies have stretched its use to cover practically anything that is not a final version of a document.
As long as a record meets the technical definition of an inter- or intra-agency record, there is nothing the public or courts can do to make an agency release it.
Thankfully, Congress has recognized this black hole in the publics right to know, and has stepped in with a bill that promises to close the loophole and make other changes that would improve the FOIA process. Longtime FOIA champions Sens. Patrick Leahy, D-Vermont and John Cornyn, R-Texas have reached across the aisle to develop and introduce S. 2520, the FOIA Improvement Act.
The bill takes the common sense step of requiring agencies to weigh the public interest in the release of an inter- or intra- agency record when considering whether to withhold it, and also puts a time limit of 25 years on the use of the exemption.
Far from radically changing how requests are processed, this narrowly tailored change to the law would help ensure historical records are available on a timely basis and stem the worst abuses by allowing a court to weigh in where necessary to make sure records that would show waste, fraud, abuse, or illegality are released.
Restoring freedom to FOIA