Transparency bill on the verge of passing is being blocked by Sen. Rockefeller
CJ Ciaramella
December 5, 2014
This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.
FOIA Reform
The FOIA Improvement Act of 2014 is on the verge of passing. One senator away, in fact. As of Friday, only Sen. Jay Rockefeller (D., W.V.) is holding up the bill.
Three senators had placed holds on the bill Thursday after it was "hotlined," which means sent out to all Senate offices prior to being placed on the unanimous consent calendar. Senators Tom Coburn and Bob Corker both dropped their holds on Thursday, though. Coburn was blocking the bill because its costs were not offset. (He does that with just about every bill that comes through the UC calendar.) It's not clear what Corker's objections were, but both his and Coburn's were smoothed out by the bill's sponsors.
Rockefeller's office has not responded calls and emails for comment. His Capitol Hill office's main phone line is just ringing until it goes to voicemail, although the press office is still around. However, FreedomInfo.org reports that Rockefeller's "doubts were identified by one bill supporter as being stimulated by the Federal Trade Commission, an independent agency. An advocate for the bill said the FTC was concerned about the administrative burden and judicial review of the foreseeable harm standard."
From what I've heard, that's accurate, but the FTC did not return my calls for comment. It's pretty cool that the federal agency and U.S. Senator who are single-handedly holding up a transparency bill that has the support of 99 other Senators won't answer questions about it.
The bill must get on the Senate's consent calendar by Monday to pass by Thursday, or else it will die and have to be reintroduced in the next session of Congress, starting this whole process all over again. Sen. Leahy, the top Democrat spearheading the legislation, put out a statement that, while not naming names, called for the bill's passage:
"We often talk about the need for government transparency, and many also note how rare it is that Democrats and Republicans can come together on any legislation. We have accomplished both with the FOIA Improvement Act. It was drafted in a bipartisan fashion after a long and thoughtful process of consultation. This week, we can pass this bill in the Senate and send it over to the House, where I am confident that it will pass, and send it to the President to sign before the end of the year. There is no reason to delay this legislation, which has broad support from a range of stakeholders, costs very little to implement and will improve access to government for all Americans.  I urge the Senate to pass the FOIA Improvement Act now, without delay."
Or here's Alex Howard, not pulling any punches:
In his farewell address, Senator Rockefeller beomaned the “hyper-partisan politics” in today’s Washington, offering memories of the Senate where compromises led to good policy.
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Respectfully, Mr. Rockefeller, to opine thus and then block a bipartisan bill that passed the U.S. House of Representatives unanimously, 410-0, before it was amended, introduced by Senator Leahy and Senator John Cornyn (R-TX), and then unanimously by passed Senate Judiciary Committee is nothing less than rank hypocrisy. It’s hard to believe that Senator Rockefeller wants to be known for blocking open government reform at a time of historic lows in trust in government and abysmal public perceptions of the U.S, but that’s exactly what will happen if he doesn’t release this hold.
Transparency advocates are pressuring Rockefeller to drop his hold. If you're that sort of person, his office number is (202) 224-6472 and the email is [email protected]. His twitter handle is @SenRockefeller.
LAWSUITS
Still interested? Over at the Reporters Committee for Freedom of the Press, Adam Marshall has a good look at the increasing and legally dubious use of "still interested" letters by federal agencies. If you file many FOIA requests, you've probably gotten one from an agency asking if you still want that little ol' FOIA request you filed five years ago, because if you don't respond the agency will close out the request without your permission. Marshall reports that OGIS is going to be looking into the practice.
New scholarly paper: Two researchers from the University of Chicago Law School and University of Colorado Boulder School of Law have an upcoming article in the Administrative Law Journal titled "[Dis-]Informing the People's Discretion: Judicial Deference Under the National Security Exemption of the Freedom of Information Act." Here's an excerpt from the abstract:
We argue that courts have been systematically ignoring their clear legislative mandate. Although the government is entitled to substantial deference, the role of the judiciary is not to rubber stamp claims of national security, but to undertake de novo and in camera review of government claims that the information requested was both required to be kept secret and properly classified. Congress amended the FOIA in 1974 to make this requirement explicit, overruling a judicial attempt to defer completely to government claims that national security classifications are proper [...]
Our conclusion is that the systematic failures of the federal courts in the FOIA context are neither inevitable nor justified. We show that courts do occasionally order the release of some documents. This article includes the first empirical investigation into the decision making of the D.C. district courts and federal circuit courts in cases involving the national security exemption to determine what, if any, factors favor document release. We find that party characteristics are the biggest predictor of disclosure. We also show that, while politics do not seem to matter at most courts, they do at the D.C. Circuit Court of Appeals, at which Republican-dominated panels have never ordered disclosure.
Body cams raise public record questions: The recent push for police body cameras and ensuing pilot programs around the nation are beginning to run into a lot of practical questions, as well as police push-back. On the practical end, there's the question of what to do with the hours of video that each officer would create every single day and what happens when public records requests start rolling in asking for video.
From Grand Rapids:
[Grand Rapids Police Chief] Rahinsky's concerns largely center around privacy, security, data storage, and the way the footage would be accessible under the Freedom of Information Act. "Would we record juveniles? Would it only be people who give consent? What would we exclude from protocol – sexual assault? Domestic violence? . . . Often when (people) call the police, they're at a low point in their lives, and if that encounter is going to be recorded, saved on a server or some type of government computer and subject to public records request, the public needs to have that conversation before we move forward with the technology."
The Gotham Gazette reports from New York City:
When asked if the videos made during the pilot program would be available by FOIL request, Bratton, Tisch, and de Blasio did not directly answer the question.
"That is part of why we are doing the pilot to understand what the legal issues are to," de Blasio said. "We have a lot of lawyers. They will be looking at this."
He added, "The Commissioner raised the point, there are some ways that this could create an untenable situation in terms of someone requesting tens of thousands of hours of data when we are trying to keep up with it. We have to sort that out."
There are similar stories popping up in Missouri, and as I wrote last week, Seattle police are already asking the state legislature to carve out exceptions for body cam footage, fearing they will have to comply with massive records requests. Meanwhile, an Arizona officer was fired for refusing to turn on his body cam.
Muckrock's Getting an Extreme Makeover: The Muckrock website is getting a big overhaul soon. Muckrock cofounder Michael Morisy was kind of enough to give me a sneak peak at the new site, and it looks very slick. The process for filing requests has been streamlined, and there will be new features, like the ability to clone requests and other tools Morisy hopes will help requesters collaborate and file better, smarter requests. So far Muckrock has published 400,000 pages of government documents, and the next step is putting them to use.
"We want to see people have an impact and see records put to action," Morisy said. "We want to see news stories and better civic engagement come out of requests." Morisy said he hopes to soft-launch the new site on Friday afternoon or Monday.
Documents of Note
STATE NEWS
EVENTS
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