The Freedom of Information Act (FOIA) was signed into law by President Lyndon Johnson half a century ago. On June 30, the President signed the FOIA Improvement Act of 2016, amending the law in any effort to increase government transparency and public access to government records. Under the Act, federal agencies must now make disclosable records available in an electronic format. Where records have been requested more than three times, it requires an agency to make them available for public inspection, unless a legitimate FOIA exemption applies. This “release to one, release to all” policy both encourages increased government transparency and may allow the government to respond more efficiently to FOIA requests, since agencies will not have to repeatedly respond to requests that are duplicative of previous ones.
FOIA has always included timelines by which an agency must respond to requests, but many agencies consistently have trouble meeting these deadlines, due to the volume of requests, limited resources, and what can often be quite complex, multi-step policies through which agencies must go before releasing responses. Under the new legislation, if an agency fails to meet FOIA’s deadlines for response, it will be prohibited from charging a fee to the requestor, unless unusual circumstances apply and the response entails more than 5,000 pages. FOIA requires an agency to provide an initial response to a records request within 20 business days. If the government denies any portion of the request, the requestor can appeal the decision to the agency head. If the agency cannot meet these timelines, FOIA requires it to provide written notice to the requestor. The goal here is to give federal agencies a financial incentive to prioritize FOIA responses.
The new law also establishes a Chief FOIA Officers Council, the purpose of which is to develop recommendations for agencies to increase their compliance and efficiency in responding. The Council will also develop performance measures to better track agency compliance.
The new legislation does not impact most of the existing FOIA exemptions, including those that protect trade secrets and source selection sensitive data from contractors responsive to solicitations. Thus, agencies must remain diligent in ensuring that competitive data, otherwise protected by a separate FOIA exemption, will remain unreleased in order to respect a contractor’s trade secrets and avoid releasing data that may provide another entity with a competitive edge. Under the FOIA Improvement Act, however, FOIA’s “deliberative process” exemption for agency communications/documents is limited to a period of 25 years. Previously, there was no time limitation on an agency’s ability to withhold such records. In other words, records of covered agency communications are now protected only for a period of 25 years after their creation, and then must be released if requested, unless another exemption applies. Because the new law applies to FOIA requests made after its passage —and not to records created after it became law—agencies may receive an onslaught of requests for deliberative process data from decisions made many years previously.
Significantly, the Act vests responsibility in the Office of Management and Budget (OMB) to develop and operate a single online portal through which FOIA requests can be made to any agency. Currently, each agency has its own regulations governing the FOIA request process. The new law took effect immediately and applies to FOIA requests made after June 30, 2016.
FOIA responses can be frustratingly tedious and slow, but this new legislation may be a step in the right direction to a more transparent government. The Obama administration has touted a presumption that “openness prevails,” and this, the most significant FOIA reform in many years, is reflective of that policy. Of course, implementation of the new requirements will be the key driver of its success and furthering the goal of government accountability and transparency.
Carrie Willett is responsible for the contents of this Article.
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