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Opinion: Morning Examiner

Patrick Leahy, John Cornyn introduce much-needed FOIA improvement bill, but still no penalties for violating public's right to know

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Beltway Confidential,Opinion,Mark Tapscott,Morning Examiner,John Cornyn,Patrick Leahy,FOIA

There are few policy areas in which bipartisanship remains a strong influence, and it sometimes seems that transparency in government is slipping off the shrinking list.

But Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. John Cornyn, R-Texas, the ranking minority member of the panel, struck a blow Tuesday for maintaining agreement across the partisan aisle on the importance of protecting the public's right to know what its government is doing.

Leahy and Cornyn jointly introduced the FOIA Improvement Act of 2014, which addresses the biggest loophole in the landmark law, the deliberative process exemption from disclosure, aka the "pre-decisional" exception.

Take the exemption and run

Under the pre-decisional exemption -- the fifth of nine the FOIA currently permits -- federal officials can withhold any document created prior to an official decision being made.

Doing so, according to the exemption's backers, is essential to protect the integrity of the deliberative process because officials won't get candid advice if advisers know their suggestions will be made public.

As the Washington Free Beacon's C.J. Ciaramella reports, the pre-decisional exemption "has become one of the most used and abused ways for government agencies to deny freedom of information requests."

Narrowing the scope

The Leahy-Cornyn proposal doesn't do away with the fifth exemption, but does significantly limit its application by requiring agencies to apply a public-interest test.

That test would be used to determine if the public interest in government accountability outweighs the need for protecting the deliberative process from exposure.

An Associated Press analysis earlier this year by reporters Ted Bridis and Jack Gillum concluded that 12 percent of all FOIA document denials cited the deliberative process exemption.

Still no penalties

Limiting the FOIA's fifth exemption is progress, to be sure, but there is one glaring hole in the Leahy-Cornyn proposal.

Nobody in the federal government ever pays a fine or goes to jail for violating the FOIA. That is why the FOIA may well be the most frequently violated law on the books concerning the daily operations of government.

Until that hole is filled with concrete penalties to put government officials on notice that they must follow the letter and the spirit of the FOIA, it will continue to be trampled too often.

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