As we reported yesterday, a bill expected to be introduced by Senators Marco Rubio and Tom Cotton would, among other things, prohibit federal agencies from disclosing records to certain foreign citizens and entities under the Freedom of Information Act. The FOIA Advisor staff—Ryan Mulvey (RM), Kevin Schmidt (KS), and Allan Blutstein (AB)—weighs in on the proposed amendments below.

KS: I’m not sold on the national security justification for the bill. FOIA exemptions exist to make sure the most sensitive government information stays secret regardless of the status of the requester. And speaking of that, how is a FOIA officer going to confirm the citizenship of the requester? There’s no information about that in the draft bill. FOIA officers have enough to deal with already. They don’t need to try to find out the citizenship status of every requester.

Sen. Rubio says the fact that foreign nationals can request records under FOIA is a “glaring loophole.” Are agencies facing a glut of FOIA requests from foreign nationals outside of the immigration space? I have no idea, but I’d be interested if anyone has seen numbers. A more reasonable argument in my mind would be that we shouldn’t use scarce resources on requests from foreign nationals, but that’s not the leading argument being made.

RM: I agree that it would be interesting to see what percentage of requesters are foreign nationals (or foreign governments or foreign business entities), assuming such information is even collected and verified by agencies. I should think the percentage is rather low, and lower still once one brackets out people seeking immigration-related records, who are still permissible requesters in the Rubio-Cotton bill.

I also take issue with the “glaring loophole” characterization of FOIA. I’m not sure the legislative history, or attendant caselaw, supports Senator Rubio’s claim. There are already judicially created exceptions to the “any person” standard, but I’ve never seen language suggesting Congress accidentally gave foreigners the right to request records. If anything, the fact Congress has already amended FOIA to prohibit requests from foreign government entities to intelligence community agencies—see 5 U.S.C. § 552(a)(3)(E)—suggests it knows how to grapple with the sort of national security concerns raised by Senator Cotton.

Turning to the other substantive proposals in the bill, I can only conclude this is a political stunt rather than a serious attempt at reform. We’re offered a bunch of (bad) solutions in search of non-existent problems. I note, for example, the vagueness of the provision criminalizing what I assume to be proxy requests on behalf of prohibited requesters. Another, more troubling provision would give an agency the discretion to “determine the manner in which a request is fulfilled . . . if [it] has a reasonable belief that fulfilling the request in the manner requested by the requester” would “result in the exposure of [non-responsive] material” or “pose[] a material security risk” to the federal government. What is this? Is this an exclusion? An exemption? What does it mean to “fulfill” a request? And why is non-responsive material, as such, a problem? How will that first sub-provision impinge on the open question of what constitutes a “record”? The latter clause touching on “material security risks” seems ambiguous. Do Exemptions 1 and 3 not already provide enough protection to keep sensitive, national-security information secret?

Finally, I have deep reservations about the proposed tenth exemption for materials “susceptible to reverse engineering.” This strikes me as a sort of “catchall” that draws on mosaic theory and the pre-Milner scope of Exemption 2. I have a hard time imaging what the exemption would cover that couldn’t already be withheld under another existing exemption. I won’t even get into the problem of understanding the “interests of the United States” in the proposed balancing test, and the implications for the foreseeable harm standard.

AB: Your points are well taken and I am confident this effort will fail. I am not offended by—but do not think it necessary to enact—a FOIA citizenship requirement. Our neighbor to the North limits access to agency records to Canadian citizens and permanent residents; however, they do not criminalize or disallow proxy requests. Additionally, a number of U.S. states have citizenship or residency requirements, including Alabama, Arkansas, Delaware, Kentucky, South Carolina, Tennessee, and Virginia, which the U.S. Supreme Court has blessed. I agree with you, Kevin, that enforcement would be logistically challenging, but where there’s a will there’s a way? The government has managed to create a “PreCheck” travel program with 10 million members; it should be able to figure out a screening process for considerably fewer FOIA requesters.

As for the remaining provisions, I have long maintained that agencies should be able to “scope out” information that requesters have not asked for. Perhaps the language here needs to be tweaked, but I support the overall objective. I agree with you, Ryan, that the exemption proposed to protect certain technology appears to be unnecessary. Section 1.4(e) of Executive Order 13,526 already allows agencies to classify “scientific, technological, or economic matters relating to the national security.”