03.15.21

Leahy, Grassley And Feinstein Introduce Bill To Reinforce Transparency In Wake Of Supreme Court FOIA Decision And Recent Regulations

(MONDAY, March 15, 2021) -- Senator Patrick Leahy (D-Vt.), with Senator Chuck Grassley (R-Iowa) and Senator Dianne Feinstein (D-Calif.), Wednesday introduced the Open and Responsive Government Act, to reverse recent developments that undermine the public’s right to access information and hold government accountable. The legislation would restore a longstanding legal interpretation of the Freedom of Information Act’s (FOIA) exemption regarding confidential commercial information, which was recently cast aside by the Supreme Court. It would also respond to recent regulatory actions by making clear that any information which does not otherwise fall within one of FOIA’s nine exemptions should be made public — thus, reinforcing FOIA’s presumption of openness and transparency.

Leahy, long the Senate’s leading FOIA champion, said:  “Protecting the American people’s right to information from and about their government – a fundamental right in any self-governed society – is a longstanding, bipartisan priority. That’s exactly why this bipartisan group of senators is coming together again to re-introduce the Open and Responsive Government Act today. Our bill is a targeted, commonsense step to bolster our premier transparency law, the Freedom of Information Act. This bill would limit the extent to which the government can use a recent Supreme Court opinion to justify abuses of a particular FOIA exemption to withhold information. I am proud to continue our bipartisan efforts to help keep our government open to the people it serves.” 

In 2019, the Supreme Court in Food Marketing Institute v. Argus Leader Media ruled that a longstanding interpretation of FOIA’s Exemption 4—often called the National Parks standard—is inconsistent with FOIA’s text and structure. For decades, the National Parks standard made clear that information may only be withheld from the public as “confidential” under Exemption 4 if its disclosure would cause “substantial competitive harm” to the person or entity that provided that information to the government. By setting aside this standard, the Court’s decision significantly broadens the scope of Exemption 4, making it more difficult for the media and general public to learn about government programs and hold accountable those who administer them. To rectify this, the Open and Responsive Government Act updates FOIA Exemption 4 to include key accountability language from National Parks, ensuring continued access to information.

The legislation also codifies a 2016 holding by the U.S. Court of Appeals for the District of Columbia to make clear that FOIA’s nine exemptions are the only authority under which agencies may redact information in otherwise responsive records. In American Immigration Lawyers Association v. Executive Office for Immigration Review, the court made clear that redacting information as simply “non-responsive” within an otherwise responsive record “cannot be squared with [FOIA’s] statutory scheme.” Recent regulatory actions, however, appear to conflict with that holding and grant authority “to issue final determinations whether to release or withhold a record or a portion of a record on the basis of responsiveness….” The bill responds to these developments by making the D.C. Circuit’s holding the rule, not the exception.

Text of the Open and Responsive Government Act is available HERE

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