Enhanced Government Transparency and FOIA Modernization Act

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Policy Proposal for Enhanced Government Transparency

Introduction

This policy aims to enhance government transparency by revising existing exemptions and exceptions under the Freedom of Information Act (FOIA). The goal is to reduce the scope of excluded material while balancing the need for confidentiality in certain sensitive areas.

Current Exemptions Overview

  1. Exemption 1: Information classified for national security.
  2. Exemption 2: Internal personnel rules and practices of an agency.
  3. Exemption 3: Information prohibited from disclosure by another federal law.
  4. Exemption 4: Trade secrets or confidential commercial/financial information.
  5. Exemption 5: Privileged communications within or between agencies.
    • Deliberative Process Privilege
    • Attorney-Work Product Privilege
    • Attorney-Client Privilege
  6. Exemption 6: Information that invades personal privacy.
  7. Exemption 7: Information compiled for law enforcement purposes that may:
    • Interfere with enforcement proceedings.
    • Deprive a person of a fair trial.
    • Constitute an unwarranted invasion of personal privacy.
    • Disclose the identity of a confidential source.
    • Reveal law enforcement techniques or procedures.
    • Endanger life or physical safety.
  8. Exemption 8: Information concerning financial institutions’ supervision.
  9. Exemption 9: Geological information on wells.

Proposed Changes to Exemptions.

All request and the justification for their denial shall be maintained on a publicly accessible www site that allows filtering by FOIA requesting number, requester, exemption or exclusion justification and date of next automatic review for release. Requests for Classified material shall also include the classification, classifying authority and the name or title and date of publication of the Classification guides, also known as security classification guidance, are instructions or sources outlining the classification of a system, project, plan, program, or mission. They are created by Original Classification Authorities (OCAs) to document and share classification decisions.

Exemption 1: National Security

  • Change: Establish a review board to evaluate the necessity of classification after a set period (e.g., 10 years). FOIA requests which were initially exempt shall be processed when declassification occurs and shared on publicly available www site.
  • Rationale: This will ensure outdated classifications do not unnecessarily hinder transparency.

Exemption 2: Internal Personnel Rules

  • Change: Limit this exemption to only rules that directly affect personnel safety and security. This exemption must identify safety or security in the response.
  • Rationale: Most internal rules do not require confidentiality and can be disclosed.

Exemption 3: Other Federal Laws

  • Change: Require agencies to provide justification for citing this exemption by specific law, promoting accountability.
  • Rationale: This ensures agencies cannot broadly claim this exemption without a clear basis. The number of requests by title and specific law number and shall be reported to Congress annually as well as published on the f federal government FOIA site.

Exemption 4: Trade Secrets

  • Change: Narrow the definition of “trade secrets” to exclude information essential for public interest.
  • Rationale: Public interest should take precedence over corporate confidentiality if or when health or safety is at stake.

Exemption 5: Privileged Communications

  • Change: Limit the applicability of the Deliberative Process Privilege to documents created within the last 5 years.
  • Rationale: Older documents should be accessible to promote accountability.

Exemption 6: Personal Privacy

  • Change: Allow for the disclosure of information when public interest outweighs personal privacy concerns.
  • Rationale: A balancing test will ensure that important public information is accessible. Data masking of PII specific details to allow disclosure of requested information should be weighed rather than blanket application of the PII protections.

Exemption 7: Law Enforcement

  • Change: Implement a tiered approach where non-sensitive information is disclosed unless there is a compelling reason not to.
  • Limit the applicability to documents exception to those created within the last 5 years unless current practices are essentially identical.
  • Any case no longer actively being investigated and pursued for prosecution shall no longer be exempt.
  • Rationale: This encourages transparency without jeopardizing ongoing investigations.

Exemption 8: Financial Institutions

  • Change: Allow public access to non-confidential portions of oversight reports.
  • Rationale: Transparency in financial oversight is essential for public trust.

Exemption 9: Geological Information

  • Change: Review the necessity of withholding geological information, particularly when it pertains to resource management and environmental impact.
  • Rationale: Information that impacts public health and safety shall be disclosed.

Exclusion Section

Exclusion 1: Ongoing Criminal Investigations

  • Description: Protects the existence of an ongoing criminal law enforcement investigation when the subject is unaware, and disclosure could reasonably be expected to interfere with enforcement proceedings.

Exclusion 2: Informant Records

  • Description: Limited to criminal law enforcement agencies; protects the existence of informant records when the informant’s status has not been officially confirmed.

Exclusion 3: FBI Records

  • Description: Limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence, counterintelligence, or international terrorism records when such existence is classified.

Recursion of Excluded Material

To further enhance transparency, it is crucial to establish guidelines for the potential recursion of excluded material. The following measures are recommended:

  1. Periodic Review: Implement a mandatory, periodic review of excluded material to assess whether the conditions justifying the exclusions still apply. This should occur at set intervals (e.g., every 5 years).

  2. Public Reporting: Require agencies to report annually on the volume and reasons for exclusions, enabling public scrutiny and promoting accountability.

  3. Transparency in Criteria: Clearly define the criteria under which exclusions are applied, ensuring that decisions are consistent and transparent.

  4. Appeal Process: Establish a process for individuals to appeal exclusions, allowing for an independent review of claims made by agencies.

Conclusion

The proposed changes aim to foster a culture of transparency within government agencies by minimizing the scope of exemptions and establishing clear exclusions. By balancing confidentiality needs with the public’s right to know, this policy seeks to enhance trust and accountability in government operations. Regular review of exemptions and exclusions will ensure that transparency remains a priority in the evolving landscape of governance.

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