Letter to Judiciary Comm. on Freedom of Information Act Reform

March 18, 2024

The Honorable Chairman Dick Durbin
Senate Committee on the Judiciary

The Honorable Ranking Member Lindsey Graham
Senate Committee on the Judiciary

The Honorable Chairman Jim Jordan
House Judiciary Committee

The Honorable Ranking Member Jerrold Nadler
House Judiciary Committee

The Need for FOIA Reform

Dear Senators and Congressmen,

Incident after incident involving the Boeing 737 MAX and other Boeing airplanes bring to the forefront the need for reform of the Freedom of Information Act. Congress must act to prevent regulated entities like Boeing from blocking all transparency on self-claimed proprietary information grounds.

The reform we propose is not truly a reform, for it would restore what Congress intended in 1967 and how courts had interpreted that intent for decades until 2019. The courts had balanced governmental and private interests into an objective test, where neither the submitter’s self-interested allegations nor the government’s grant of secrecy were dispositive.

Boeing has been manufacturing unsafe planes for over a decade now, its leadership and core of engineers replaced by Wall Street executives seeking short term profits and stock buybacks. When FlyersRights wanted its independent experts to evaluate Boeing’s proposed fix for the MAX after President Trump grounded the MAX in 2019, Boeing claimed over 99% of its information was proprietary or trade secrets. When FlyersRights subsequently took the FAA to court, the court took a strong interest in our claim that the FAA was withholding important information that the public needed to see. Ultimately, when Boeing classified everything as proprietary, the examination was finished. Neither judge nor opposing party actually saw the information in question.

The Argus Leader decision in 2019 turned FOIA upside down. Instead of objectively evaluating what information is proprietary, the Supreme Court decided to allow the nation’s biggest corporations to declare whether its own information is proprietary. This is a free pass that allows corporations to exempt themselves from FOIA. Federal agencies now feel compelled to honor even the ridiculous claims of regulated entities or are more than happy to stonewall the public.

Congress should restore a National Parks substantial competitive harm test, weighing the need for disclosure, public transparency, and oversight against the submitter’s commercial interests in an objective manner.

Alternatively, Congress can require specific categories of disclosure related to Boeing’s ongoing 737 MAX and design and manufacturing debacles.