United States: President Signs Freedom Of Information Act Reforms

Obtaining government documents through the Freedom of Information Act (FOIA) should become somewhat easier under a law signed by President Obama on June 30, 2016. The law, known as the FOIA Improvement Act of 2016 (S. 337), contains a series of reforms meant to codify a presumption of transparency and to streamline the process of requesting and obtaining federal government records. The law's enactment comes just four days before the 50th anniversary of the signing of the original FOIA on July 4, 1966.

Among the law's biggest supporters were journalism organizations and pro-transparency advocates, which for years have been asking Congress to strengthen FOIA. Baker Hostetler's media law group closely monitored the evolution of the legislation through its participation in the Sunshine in Government Initiative, a coalition focused on public access to government information. The main provisions of the FOIA Improvement Act include:

• Presumption of openness. The law codifies a new standard for disclosure in situations when an agency has discretion over whether to release or withhold documents subject to a FOIA request. In such situations, the law now requires the agency to release the documents unless the agency reasonably foresees that disclosure would cause specific harm to an interest protected by one of FOIA's nine exemptions (which carve out nine categories of records from mandatory disclosure). Under President George W. Bush's administration, agencies were encouraged to limit discretionary disclosures. When President Obama took office in 2009, he issued an executive order instructing agencies to release documents unless the release would harm an interest protected by a statutory exemption. The FOIA Improvement Act takes the policy statement contained in the executive order and enshrines it in law.
• Online FOIA portal. The law requires the federal government to set up a single website that will act as a portal through which members of the public can submit FOIA requests to any agency. Currently, most agencies accept FOIA requests online, but requesters must visit a particular agency's website to learn how to submit the request.
• Stronger FOIA ombudsman. The law strengthens the Office of Government Information Services (OGIS), which acts as a FOIA ombudsman within the federal government. The mission of OGIS is to assist members of the public with FOIA questions, to monitor agencies' compliance with FOIA and to recommend ways that FOIA can be improved. Previously, OGIS had to seek input from other agencies before making recommendations to Congress; now, OGIS will be able to make independent recommendations. In addition, agencies are now required to notify requesters that they can seek mediation services from OGIS if they feel that an agency is not properly handling their request. In such disputes, OGIS will have the ability to issue advisory opinions. This provision should encourage alternative dispute resolution and avoid expensive litigation over FOIA requests.
• Electronic access. The law requires that certain documents be made available in electronic format, including documents that have already been released under a FOIA request on three or more occasions. Previously, there was no requirement that agencies provide electronic versions of any document.
• Limit on "deliberative process" privilege. The law provides that agencies cannot assert the "deliberative process" privilege over interagency or intra-agency documents that are more than 25 years old. Previously, agencies could use that privilege to withhold documents related to internal decision-making processes, no matter how old the documents were.

Journalists, of course, routinely use FOIA to obtain essential documents in the course of their reporting on federal agencies. Advocacy organizations and watchdog groups frequently make use of FOIA as well. For these groups, the enhanced procedural aspects of the FOIA Improvement Act will be welcome. And beyond the journalism and advocacy communities, corporations and other private requesters in recent years have increasingly discovered that FOIA can be a useful tool. In industries subject to federal regulation, well-tailored FOIA requests may reveal documents that contain competitively beneficial information. With the law now providing for more streamlined access, companies may find it easier and less costly to obtain such information.

The FOIA Improvement Act, however, does not impose significant changes to the substantive rules about what sorts of documents must be released under FOIA. Except for the change to the "deliberative process" privilege for old documents, the nine statutory exemptions in FOIA remain virtually unchanged. For example, the exemptions continue to permit agencies to withhold classified information, law enforcement records, trade secrets and information that would cause an unwarranted invasion of personal privacy. In theory, the new law's codification of a "presumption of openness" is intended to restrict the ability of agencies to invoke some of these exemptions. In practice, however, agencies will likely claim, as they have done in the past, that there is the requisite risk of "specific harm" necessary to invoke the exemptions.

The changes to the law take effect immediately and are to be applied to all future FOIA requests.

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