Congress Wants It Both Ways on FOIA

Last week was a mixed week in FOIA circles. On the one hand, a FOIA provision that Senators Leahy (D-VT) and Cornyn (R-TX) had pursued for several years finally passed in both houses of Congress. That provision requires a clear statement when Congress passes new laws – called (b)(3) statutes in FOIA lingo – to exclude specific records from release under FOIA. On the other hand, the provision seeking to limit new exemptions from disclosure was tied to a new FOIA (b)(3) withholding statute that bars the release of pictures of detainees held in US custody, including at Abu Ghraib prison in Iraq.

The detainee photos provision puts to the end five years of litigation about the photos in the broader lawsuit brought by the ACLU over detainee documents. In that litigation, the ACLU has obtained the release of thousands of pages of records documenting practices at Abu Ghraib and Guantanamo Bay that have been influential in bringing about changes to US policy. The pictures are just one aspect of the lawsuit, but they were a part of the case that both the trial and the appellate court had ruled in favor of disclosure. In April 2009, the Pentagon announced that it would release the pictures, but on May 13, 2009, President Obama publicly opposed releasing the pictures.

The National Security Archive in conjunction with the Electronic Frontier Foundation filed two amicus briefs in the case in which we made the point that the “Freedom of Information Act is the statutory embodiment of the democratic principle that the public is entitled to call on those who govern on the public’s behalf to account for their conduct.” In our briefs, the Archive argued that the anger that could result from the release of the pictures is exactly what is intended by the FOIA. The collection of pictures that the ACLU sought is directly relevant to an important policy debate and the American people care about the issue and are entitled to be informed about it.

The U.S. Senate voted 79-19 to adopt the conference report on the bill that included the two provisions on Friday October 23, and the U.S. House of Representatives voted a week earlier 307-114 to support the provisions. The bill will now go to President Obama for his signature.

The National Security Archive has published the Torture Archive, a database of more than 83,000 pages of government documents about US detention and interrogation policy and practice.