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Holding the Government Accountable

Just in Time for its 50th Anniversary, FOIA is Improved

After years of attempted reform, Congress passed a Freedom of Information Act (FOIA) reform bill and President Obama signed it into law yesterday, just days before the 50th anniversary of the original bill.

Special thanks to our bipartisan congressional champions who made this important reform a reality: Representatives Jason Chaffetz (R-UT), Elijah Cummings (D-MD), and Darrell Issa (R-CA) and Senators Charles Grassley (R-IA), Patrick Leahy (D-VT), and John Cornyn (R-TX).

As with any new legislation, people have been wondering what effect this new bill will have on FOIA.

The Project On Government Oversight broke down some of the major improvements:

On June 13, the House passed the bipartisan FOIA Improvement Act of 2016 (S. 337). The bill, already passed by the Senate in March 2016, will become law once President Obama signs it.

In order to improve the public’s access to agency records, the bill focuses on the presumption of openness in FOIA disclosures, the electronic accessibility of numerous types of documents, limits to the use of exemption (b)(5), and oversight of FOIA administration.

The FOIA Improvement Act significantly advances the public’s ability to learn about the government’s actions and policies. Some of the bill’s requirements, such as the presumption of openness and electronic accessibility of records, are particularly crucial in today’s digital world. In recent years, FOIA has been subject to erosion, and agencies have regularly failed to practice openness in administering FOIA. Hopefully, S. 337 will hold agencies more accountable, and remind agencies that they have a duty to release information to the public that they serve.

S. 337’s codification of the presumption of openness sets a standard of transparency. In a 2009 memorandum, President Obama directed all federal agencies to administer FOIA with a presumption of openness. When release is up to the FOIA officer’s discretion, an agency should disclose, rather than withhold, information. S. 337 codifies this presumption. It allows an agency to withhold information only if disclosure would harm an interest protected by exemption, or if the disclosure is prohibited by law. If full disclosure of information is not possible, the bill requires agencies to consider partial disclosure.

S. 337 includes improved requirements for preemptive disclosures. The bill requires agencies to publicly post records that have been requested and released three or more times, and to identify records of general interest that should be made accessible to the public. This is a significant step forward in making government agencies more transparent; it will allow the public access to information without being made to submit a FOIA request.

S. 337 increases electronic accessibility to agency records. The bill requires electronic publication of numerous documents to make them readily accessible: agency records, FOIA guidance, FOIA reports, the raw data used in FOIA reports, and the annual FOIA report each agency has to submit to Congress. It also requires the establishment of an online portal for information requests government-wide.

S. 337 limits the use of exemption (b)(5). Since its enactment in 1966, FOIA has included nine exemptions to the public’s right to access, which an agency can use to deny a FOIA request. Exemption (b)(5) permits an agency to withhold inter- or intra-agency memoranda that would not be available by law except to an agency during litigation. Historically, this exemption has been used to withhold a broad range of information, and has often been used as a sort of blanket exemption.

The bill prohibits agencies from applying exemption (b)(5) to any deliberative process records that are more than twenty-five years old. This will increase the release of historical records that will help the public better understand how policies have developed.

S. 337 requires agencies to notify requesters of their right to dispute resolution. Agencies must inform requesters of their right to seek assistance from the FOIA Public Liaison for the responding agency, and of their right to seek dispute resolution from the liaison or the Office of Government Information Services (OGIS). With the right to dispute resolution services, requesters have an opportunity to appeal rejected requests for information. S. 337 gives the public another way to contest denied FOIA requests.