Bi-Partisan FOIA Reform Bill Would Correct Recent Supreme Court Decision

July 25, 2019

Senators Chuck Grassley (R-IA), Patrick Leahy (D-VT), John Cornyn (R-TX), and Dianne Feinstein (D-CA) have introduced the Open and Responsive Government Act (S. 2220) to reverse the recent Supreme Court decision in Food Marketing Institute v. Argus Leader Media which overturned over 40 years of Freedom of Information Act precedent. The bill codifies the National Parks test, requiring that information may only be withheld from the public if disclosure would cause "substantial competitive harm" to the oompany that provided that information to the government. The bill also makes clear that agencies may only redact information under the FOIA's nine exemptions and cannot redact information as "non-responsive." In a press release Senator Leahy said, "The 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. And it would codify another court decision – one that the Trump administration increasingly ignores – prohibiting the government from withholding information on the tenuous rationale that it is supposedly not responsive to the FOIA request." According to Senator Grassley, "This balanced and bipartisan bill . . . mak[es] crystal clear where Congress stands on the public's right to know." EPIC submitted an amicus brief in the Food Marketing Institute case, warning the Court that changing the National Parks standard would deprive the public and groups such as EPIC access to important government information. EPIC frequently uses the FOIA to promote government oversight.

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