Sen. Rockefeller Sitting On FOIA Improvement Act, Despite Two Unanimous Votes In Favor Of Passage

from the bipartisan-support-meets-gov't-agency-resistance dept

Mon, Dec 8th 2014 9:29am — Tim Cushing

A FOIA reform bill that sailed through both the House (410-0) and the Senate Judiciary Committee (again with a unanimous vote) is currently stalled, having gone nowhere for the past two weeks thanks to Sen. Jay Rockefeller.

The Freedom of Information Act Improvements Act (hereinafter cited as "FOIAIA") helps put the "freedom" back in the FOIA -- something that has a chance to trim down the number of requests that result in fully-redacted pages or federal lawsuits. Rockefeller has expressed some concerns about the openness of the open records law improvements.

"I have a long record of support for open government and the FOIA process. I am concerned that provisions in this bill will have the unintended consequence of harming our ability to enforce the many important federal laws that protect American consumers from financial fraud and other abuses," Rockefeller said in a statement Friday. "According to experts across the federal government, these provisions would make it harder for federal agency attorneys to prepare their cases, and they would potentially give defendants new ways to obstruct and delay investigations into their conduct. I hope there is a way to address these concerns and pass the bill."

The two agencies offering up the most resistance to the bill appear to be the FTC and the SEC, both of which apparently feel the law creates a playground for targets of its investigations.

[S]ources said the agencies' concerns are that the legislation would allow companies to pierce the attorney-client and attorney work-product privileges, potentially giving targets of enforcement actions a roadmap detailing what kind or level of misconduct will trigger action and what kind is likely to be ignored.

There also appears to be a law enforcement contingent pushing for death of this bill as well.

"The bill would statutorily require government law enforcement agencies to withhold documents from a FOIA request only if they first establish that 'the agency reasonably foresees that disclosure would harm an interest protected by' the exemption invoked," said a Rockefeller aide who asked not to be named. "Consequently, the bill could expose law enforcement agencies to needless litigation and drain their already limited resources in defending FOIA decisions that have long been invoked for legitimate law enforcement purposes."

Transparency advocates point out that privileged attorney-client communications will remain privileged even with the passage of the bill and that government agencies will still retain the power to redact information and withhold documents -- they'll just need to start providing better explanations for these actions. As for the concerns about the new "forseeable harm" requirement? That requirement isn't even new.

"Agencies have been required to use this standard since 2009 when Attorney General Holder issued a memo requiring it. Agencies also used this same standard during President Clinton's term. It was only during President George W. Bush's term of secrecy that this standard was rolled back," [Patrice McDermott of OpenTheGovernment.org] wrote.

So, it appears Rockefeller is hoping the whole thing just goes away. The reform bill had already been watered down post-House passage and additional concerns raised by Tom Coburn had been addressed, resulting in him releasing his hold on the legislation late last week. Now, it's up to Rockefeller to do the same. If he doesn't do it by the end of the day on Monday, the bill dies.

As it stands now, Rockefeller is standing alone among his fellow senators and representatives. Two unanimous votes -- one in the House and one in the Senate -- are being negated by a single Senator. Supporters of FOIA reform are urging people to contact his office and make it clear that Rockefeller alone shouldn't get to decide whether this bill lives or dies, especially considering its path to this point.

Sen. Jay Rockefeller
Phone: 202-224-6472
Fax: 202-224-7665
Email: Sen.Rockefeller@opencongress.org
Twitter: @senrockefeller

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Filed Under: foia, ftc, hold, investigations, jay rockefeller, sec, transparency

27 Comments

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Anonymous Anonymous Coward, 8 Dec 2014 @ 9:45am

Email: Sen.Rockefeller@opencongress.org

Is this some kind of reverse karma invocation?
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BentFranklin (profile), 8 Dec 2014 @ 9:48am

Um, if it was unanimous, didn't he vote for the damn thing?
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James T, 8 Dec 2014 @ 9:49am

Re:
Sadly that's not how it works.
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David, 8 Dec 2014 @ 9:51am

Gotta love U.S. "democracy" checks and balances
There is always one more instance that can be greased to make sure democracy does not trump the interests of the powers that be.
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Anonymous Coward, 8 Dec 2014 @ 9:52am

in other words, he has been 'encouraged' to stall this until the bits in it that make it easier for people to get information have been changed to make it even harder than it is now! if he is the only one holding this up, it should go forward without his approval!
this is the sort of thing that the NSA try to do! i wonder what the real reason behind this is! he needs to be very careful delaying this because i'll bet his reasoning is being checked very thoroughly!
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Anonymous Anonymous Coward, 8 Dec 2014 @ 9:57am

Does anyone know...
the origins and/or reasoning for congressional (in this case Senate) rules that allow one individual to hold up the whole process? Seems whatever that reasoning was, may not hold up any longer.
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Pixelation, 8 Dec 2014 @ 10:26am

Time to dig
I wonder what Senator Rockefeller has to hide...
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Anonymous Coward, 8 Dec 2014 @ 10:36am

I wonder whether he'll actually stand and filibuster, like in the old days, when that was what was needed - someone who would stand aand talk nonstop to halt the progression of a Bill of Congress.
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Anonymous Coward, 8 Dec 2014 @ 10:57am

Party of No Strikes Agin
The Party of No says No to transparency.
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Anonymous Coward, 8 Dec 2014 @ 11:17am

Re:
Sounds dirty. From both sides.
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Anonymous Coward, 8 Dec 2014 @ 11:31am

Doesn't matter Sen Rockefeller Is leaving office at the end of the year.
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Anonymous Coward, 8 Dec 2014 @ 11:32am

This name and the power it has is one more proof of how corrupt the government is.
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Coyne Tibbets (profile), 8 Dec 2014 @ 12:13pm

Regulatory captives
But the companies gave the enforcement road maps to SEC and FTC in the first place. The agencies are just echoing the companies' concerns that we will find out what regulatory capture really means.
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seal, 8 Dec 2014 @ 12:42pm

rocky iii
JR is a cheap hobbyist politician.
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Anonymous Coward, 8 Dec 2014 @ 1:00pm

Re: ...didn't he vote...
Either the bill was referred to more than one committee (can happen) or the (sic) Honorable Senator is a 'gatekeeper'. If he is in fact on the Judiciary Committee then he deserves to be scorned for voting first and then thinking second thoughts.
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ZK, 8 Dec 2014 @ 1:16pm

Party Missing? (D)
Did you forget to mention which party we're talking about?

As a rule, if the party isn't mentioned when discussing a misbehaving politician, they're a Democrat. Likewise here.
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Anonymous Coward, 8 Dec 2014 @ 1:56pm

Re: Time to dig
he probably views himself as one of the privledged elite, and has no interest in sharing the rights every American is supposed to have with those he views as serfs to be exploited for his personal gain.
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Gwiz (profile), 8 Dec 2014 @ 2:06pm

Re: Party Missing? (D)
Did you forget to mention which party we're talking about?

Techdirt only indicates the political party of someone when it's actually important to the story.

This is a good thing. It keeps our usually intelligent discussions from breaking down into "Ho-ray for my team!" bipartisan silliness and keeps the focus on the actual issue.
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Anonymous Coward, 8 Dec 2014 @ 2:07pm

You forgot!
you forgot about the evil nanobot he took at the swearing in as a condition to taking office. Evil is not innate, it is induced, usually by money and power.
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Anonymous Coward, 8 Dec 2014 @ 2:26pm

Re: rocky iii
And I'm a bipedal mammalian human being.
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KRA, 8 Dec 2014 @ 5:21pm

He's on his way out of office and is doing what he can to ingratiate himself to someone he'll want money from soon, is my guess.
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That One Guy (profile), 8 Dec 2014 @ 7:40pm

Democracy in action
One person.

One person is able to effectively block the efforts of 410ish others, who unanimously agreed that something needed to be done to fix the FOIA process, at least in part. Even when those that are supposed to represent the public try and do their jobs all it takes is one or two people in the wrong place and all their efforts are wasted.

Examples like this are why I don't buy the arguments that get tossed out about how 'People get the government they deserve'. Over 400 public representatives tried to serve their constituents, only to have their efforts brought to a dead halt by a single person.

'If you don't like what your government is doing, vote in better people next time' only really works when the system isn't this broken, corrupt, and easy to game.
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That One Guy (profile), 8 Dec 2014 @ 7:43pm

Re: Party Missing? (D)
If you're so focused on a single letter, odds are good that those blinders of yours also keep you from noticing when it's twin does something bad as well.

Just a suggestion, but once you take the 'My team is always right, the other team is always wrong' blinders off, it won't take long before you realize both 'teams' are equally bad.
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David, 9 Dec 2014 @ 2:14am

Re:
So what? After that there is a Republican majority in the Senate IIRC. There will be no torture report released at all then, whether waterboarded down beyond recognition or not.
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David, 9 Dec 2014 @ 2:19am

Re: Party Missing? (D)
As a rule, if the party isn't mentioned when discussing a misbehaving politician, they're a Democrat. Likewise here.

Yup, because it requires a Democrat to sabotage a Democratic Senate. Once the new majorities are in place, the entertainment industrial military complex will no longer need to pay off a traitor to the leading party for getting their will.
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Cal (profile), 9 Dec 2014 @ 8:58am

Re: Democracy in action
"Democracy in action"

America is NOT a democracy, she has NEVER been a democracy, nor will she ever be one. America is a Constitutional Republic.

The US Constitution defines our government, split up the duties between the 3 branches within the federal government. It guaranteed a republican form of government for each of the states, who retained their and the peoples power EXCEPT for that expressly assigned to the federal government.

As Charles Pinckney (when rebuking concerns of unlimited powers for the general government) insisted, “we certainly reserve to ourselves every power and right not mentioned in the Constitution.” Understand that this clarification was not an isolated phenomenon; the Constitution was described this way in all states by its vigilant supporters.

James Wilson’s “State House Yard Speech” confirms this. To the accusation that the Constitution gave the general government powers which were not explicitly stated, Wilson responded to such an assertion by noting that “everything which is not given is reserved.” Wilson said that power in the Constitution is not granted by “tacit implication, but from the positive grant expressed in the instrument of the union.”

The reason you here the term "democracy" all the time in reference to our legitimate government is to make it easier to change our government from within when the people themselves do not understand what it is, that it delegates specific listed authority and no more then what is listed within it, nor does it allow those who serve within it to take more powers (authority) then that assigned to it - and it matters no how many people agree to it because the document itself is the contract they are under.
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John Fenderson (profile), 9 Dec 2014 @ 10:13am

Re: Re: Democracy in action
The US is not purely a republic nor purely a democracy. To call the US a "republic" is no more or less accurate than calling it a "democracy". It's a motley mix of both of those (and a few other systems).
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