[Congressional Record Volume 160, Number 149 (Tuesday, December 9, 2014)]
[Senate]
[Pages S6442-S6443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          FOIA IMPROVEMENT ACT

  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent to engage in 
a colloquy with Senator Leahy of Vermont, chairman of the Senate 
Judiciary Committee, regarding S. 2520, the FOIA Improvement Act of 
2014.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. I thank Senator Leahy for attempting to address my 
concerns about this bill. I thank his committee staff for working with 
my committee staff to insert clarifying report language.
  Mr. LEAHY. I would like to acknowledge the chairman of the Senate 
Committee on Commerce, Science, and Transportation for highlighting 
important concerns of the agencies his committee works with closely. 
This legislation seeks to further the goal of government transparency; 
but we also understand the need for government agencies to dutifully 
and carefully fulfill their responsibilities.
  Mr. ROCKEFELLER. From the beginning, I have recognized that this bill 
would make important changes to the Freedom of Information Act. My 
concerns have been rooted in the possible unintended consequences this 
bill would have on consumer protection. I was concerned this bill would 
make it harder for our consumer protection agencies to bring 
enforcement actions against corporate wrongdoers.
  Specifically, I am concerned that requiring government law 
enforcement agencies to show foreseeable harm that is not ``speculative 
or abstract'' when invoking FOIA exemptions for attorney-client, work-
product, and deliberative process privileges will undermine law 
enforcement efforts.
  Hundreds of years of American legal tradition has generally protected 
work-product documents and attorney-client communications from the 
discovery process in civil litigation. Further, the deliberative 
process privilege has allowed government agencies' law enforcers to 
freely exchange ideas and legal strategies as part of their internal 
decision making process.
  I am concerned that the bill could have a ``chilling effect'' on 
internal communications and deliberations of agencies' law enforcement 
personnel who are preparing law enforcement actions against alleged 
wrongdoers, in order to avoid the prospect of increased litigation.
  We do not want to hinder the robust, internal exchange of rigorous 
ideas and legal strategies within government agencies when they are 
bringing enforcement actions.
  Given this, courts should review agency law enforcement decisions on 
the new foreseeable harm standard under an ``abuse of discretion'' 
standard.
  Mr. LEAHY. At Senator Rockefeller's request we have included language 
in the committee report on the abuse of discretion standard and its 
application to make clear that it is the intent of Congress that 
judicial review of agency decisions to withhold information relating to 
current law enforcement actions under the foreseeable harm standard be 
subject to an abuse of discretion standard.
  Mr. ROCKEFELLER. Furthermore, if we are going to potentially burden 
our government agencies with increased costs that will be associated 
with complying with the bill, then I think Congress should also provide 
these agencies with sufficient funding to deal with what is sure to be 
an increased workload.
  While I still have concerns about this bill's effect on consumer 
protection, I think the accommodation made by Senator Leahy will help. 
I thank him for inserting clarifying language in the report with regard 
to this congressional intent on review of information withheld under 
the foreseeable harm standard.
  Mr. JOHNSON of South Dakota. Mr. President, I ask consent to engage 
in a colloquy with Senator Leahy, chairman of the Senate Judiciary 
Committee, regarding important aspects of S. 2520, the FOIA Improvement 
Act of 2014.
  While I support the ultimate goal of this legislation, which seeks to 
increase government transparency, as the chairman of the Senate Banking 
Committee, I am also mindful of the need for government agencies to 
dutifully and carefully fulfill their oversight responsibilities of our 
Nation's financial institutions and the health and welfare of our 
financial systems at-large. Financial regulatory agencies are tasked 
with ensuring the safety and soundness of the financial system, 
compliance with Federal consumer financial law, and promoting fair, 
orderly, and efficient financial markets. A critical component of 
effective oversight is the ability of a financial regulator to have 
unfettered access to information from a regulated institution. A 
financial institution should not have to fear that its regulator will 
be unable to protect the institution's confidential information from 
disclosure. Since the passage of the Freedom of Information Act, 
Congress has recognized the importance of protecting this type of 
supervisory information as evidenced specifically in 5 U.S.C. Sec.  
552(b)(8), commonly referred to as Exemption 8, and more generally in 
other exemptions. It is my understanding that nothing in S. 2520 is 
intended to limit the scope of the protections under Exemption 8, or 
other exemptions relevant to financial regulators; nor is the bill 
intended to require release of confidential information about 
individuals or information that a financial institution may have, the 
release of which could compromise the stability of the financial 
institution or the financial system, or undermine the consumer 
protection work by the regulators. Given that the release of 
confidential or sensitive information relating to oversight of 
regulated entities could cause harm to such entities, individuals, or 
the financial system, a financial regulatory agency could reasonably 
foresee that disclosure of such information requested under FOIA may 
harm an interest protected by Exemption 8. This is precisely why 
Congress continues to provide these statutory exemptions.
  Mr. LEAHY. I thank Senator Johnson for his remarks and for his 
interest and support for this legislation. I agree that it is important 
to ensure that our financial regulators are able to do the work 
required to maintain the safety and soundness of our financial 
institutions. I also agree that the free flow of information between 
regulators and financial institution is important to this process. 
Exemption 8 was intended by Congress, and has been interpreted by the 
courts, to be very broadly construed to ensure the security of 
financial institutions and to safeguard the relationship between 
financial institutions and their supervising agencies. The proposed 
amendments to the Freedom of Information Act, FOIA, are not intended to 
undermine the broad protection in Exemption 8 or to undermine the 
integrity of the supervisory examination process. Moreover, much of the 
information that the government is permitted to withhold under 
Exemption 8, is also protected under Exemption 4, which exempts from 
disclosure commercial and financial information that is privileged or 
confidential. Exemption 4 covers information prohibited from disclosure 
under the Trade Secrets Act and similar laws, and as such does not 
provide for discretionary disclosure under FOIA. As with other 
exemptions that are based on separate legal restrictions, it is 
understood that the foreseeable harm standard will not apply to most of 
the information falling under Exemption 4. I will address these 
concerns, and I appreciate all the time and attention the Senator from 
South Dakota has given to this important legislation.
  Mr. JOHNSON of South Dakota. I thank the Senator from Vermont for his 
work on this important matter and for working with me to clarify the 
scope of this bill. I hope the Senator from Vermont continues to work 
on these issues with the agencies to ensure that this new standard will 
not serve to undermine the broad protections currently afforded to 
confidential supervisory information and in turn undermine the 
cooperative relationship between regulators and their supervised 
institutions.

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