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Feinstein, Grassley, Leahy, Cornyn Introduce Bill to Reinforce Transparency in Wake of Supreme Court FOIA Decision and Recent Regulations

Washington–Senator Dianne Feinstein (D-Calif.) and Chuck Grassley (R-Iowa) today, along with Senators Patrick Leahy (D-Vt.) and John Cornyn (R-Texas) introduced the Open and Responsive Government Act (S. 2220), 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.

“Companies shouldn’t be allowed to hide information about how they’re spending federal funds or using federal property. Doing so would prevent the public from holding companies accountable for wasting taxpayer funds. This commonsense legislation restores the standard under which we’ve operated for 40 years and provides the public with the ability to know how taxpayer dollars are being spent,” Feinstein said.

“The people’s business ought to be available to the people. It’s only through public oversight and transparency that we ensure government programs are operating as intended, without any waste, fraud, or abuse. Transparency is something worth fighting for, and it seems we’re always in an uphill battle to keep the sunlight shining on government. This balanced and bipartisan bill responds to recent court rulings and regulatory actions, restoring pro-transparency principles and making crystal clear where Congress stands on the public’s right to know,” Grassley said.

“Protecting the American people’s right to access information from and about their government – a fundamental right in any self-governed society – is a longstanding, bipartisan priority. That’s exactly why a bipartisan group of senators came together and introduced the Open and Responsive Government Act of 2019 today. Our bill is a targeted, commonsense step to bolster our premier transparency law, the Freedom of Information Act. The 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. And it would codify another court decision – one that the Trump administration increasingly ignores – prohibiting the government from withholding information on the tenuous rationale that it is supposedly not responsive to the FOIA request. I am proud to take part in introducing this bill and to continue our bipartisan efforts to keep our government open to the people it serves,” Leahy said.

“The Freedom of Information Act is a cornerstone of our country’s belief in open and transparent government. As court rulings are released and case law changes, updates like this must be made to FOIA to improve compliance and ensure Americans can continue to hold those who represent them accountable,” Cornyn said.

In June, 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.

In March, Grassley, Leahy, Cornyn and Feinstein expressed concern about a continued culture of secrecy within the federal bureaucracy that has spanned many administrations. They recently criticized a new Environmental Protection Agency rule potentially undermining access to certain material. Proposed rules by the Department of the Interior were also the subject of criticism from transparency advocates.

Text of the Open and Responsive Government Act is available HERE.