Jun 14, 2022 - Politics & Policy

Senate bill would ban foreign FOIAs

Illustration of US map with the flag on top and a large crack in the center. A hand is holding a magnifying glass up to the crack.

Illustration: Allie Carl/Axios

Republican members of Congress are introducing legislation to bar foreign nationals and entities from obtaining government records under the Freedom of Information Act, Axios has learned.

Why it matters: The bill's sponsors say it would prevent potentially adversarial foreign actors from accessing sensitive government records. FOIA lawyers are writing it off as a solution in search of a problem.

The details: The bill is set to be introduced this week by Sens. Marco Rubio (R-Fla) and Tom Cotton (R-Ark.).

  • It would restrict FOIA requests to American citizens, permanent residents, companies headquartered in the U.S. and other limited categories such as migrants seeking copies of their federal immigration files.
  • It would also entirely bar any subsidiary of companies based in China, Russia, Iran, North Korea, Cuba, Syria or Venezuela from filing FOIA requests
  • The bill would make it a criminal offense for any intermediary, such as a law firm, to request records on behalf of an otherwise-prohibited person or entity.

What they're saying: “It makes no sense that malign foreign entities can use our laws to access sensitive government information, all while thousands of U.S. citizens continue to wait for their FOIA requests to be answered," Rubio told Axios in a statement.

  • "FOIAs should be used to inform American citizens, not foreign entities. My common-sense bill will correct this glaring loophole,” he wrote.
  • Cotton said the bill "will prioritize American requests and prevent our adversaries from stockpiling U.S. government information.”

Yes, but: FOIA already carves out a number of categories that are exempt from disclosure under the act, such as national security and trade secrets.

  • In response to questions about those carveouts, Rubio's office said current national security exemptions "are unclear and difficult to articulate. Our bill is cut and dry, and simply creates an added layer of protection.”

The other side: Attorneys who work on FOIA requests and litigation told Axios they don't see the need for it.

  • "This would be a major change in FOIA to achieve what seems more like a political talking point than anything else," said Bradley Moss, a partner at the firm Mark S. Zaid P.C.

Kel McClanahan, the executive director of National Security Counselors, a nonprofit law firm, said the bill could undermine a key precept of FOIA, known as "release to one, release to all."

  • "Once a document has been released under FOIA, it cannot be withheld from another requestor," McClanahan explained. Under Rubio and Cotton's bill, that standard would no longer be universal.
  • The legislation "would either not do anything useful," he said, or it would be a "toe in the door to get rid of other things like release to one, release to all."
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