WASHINGTON
– Senator
Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee, today,
along with Senators Patrick Leahy (D-Vt.) and Dianne Feinstein (D-California),
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.
“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 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,” Leahy said.
“The
people have a right to know what their government is doing and hold it
accountable for its actions. Our bill will ensure that Freedom of Information
Act requests are processed quickly and accurately and that the transparency
provided by the law is protected,” Feinstein said.
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.
The
Open
and Responsive Government Act is the just most recent of Senator
Grassley’s longstanding efforts to respond to decisions by federal courts that
undermine accountability, transparency, or other congressional intent. In
2018 and
2019,
Senator Grassley introduced or sponsored legislation to close loopholes in the
Anti-Terrorism Act of 1992—a law he authored—after court decisions limited the
ability of American victims of terrorism to seek justice. In
2017,
Senator Grassley’s
Family Farmer Bankruptcy Clarification Act became
law, following bipartisan work to respond to a 2012 decision by the Supreme
Court that ignored Congress’ express goal of helping family farmers.
Text of
the
Open and Responsive Government Act is available
HERE.
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