Privacy SOS

Congress taking steps to expand public access to executive branch documents

Congress may actually do something about government secrecy. In the face of deep division between democrats and republicans on many issues, unity over concerns about executive branch secrecy may—after the IRS, VA, and NSA scandals, among others—finally lead to good results. Josh Gerstein reports for Politico:

At the forefront of the agenda for transparency advocates is a Freedom of Information Act reform bill introduced last month by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. John Cornyn (R-Texas) that could pry open more executive branch documents. The bill would make a key change to the law: allowing a judge to override claims that disclosure could inhibit executive branch decision making.

Journalists and other regular FOIA requesters say the “deliberative process” exemption is overused and often undermines the entire purpose of the law by giving agencies virtually unlimited discretion to wall off documents from public view.

In addition to the Cornyn-Leahy bill, others are making notable progress on the Hill.

A bill to speed access to presidential records and make sure official emails aren’t lost by being routed through private accounts cleared the House in January on a remarkable 420-0 vote. A Senate committee approved the measure on a voice vote in May.

There have also been signs of new interest in Congress in another form of transparency legislation: a so-called shield law that would protect journalists from having to testify about their sources in federal court.

While Republicans are often critics of the mainstream media, there are indications some in the GOP House majority are willing to move toward greater protections for the press if it means more scrutiny of the Obama administration. In May, the House voted, 225-183, for a broad appropriations rider to prevent the Justice Department from subpoenaing journalists for their confidential sources. A total of 53 Republicans joined with 172 Democrats to approve the measure.

As for the proposal to expand access to executive branch documents by allowing judges to rule on the merits of specific "deliberative process" exemptions? Gerstein writes that while the Obama administration probably wouldn't outright veto the bill, the White House might try to get it quietly blocked in the senate.

The Department of Justice has used the deliberative process exemption to try to withhold from public disclosure extrajudicial killing memos and a legal opinion regarding the use of National Security Letters. Critics including the ACLU say that this use of the exemption enables the executive branch to keep the law secret from the public.

© 2021 ACLU of Massachusetts.