While it did not come into effect until 1967, this Fourth of July marks the 50th anniversary of the signing of the Freedom of Information Act (FOIA). The law is how the public can access the records of any federal agency, provided the information does not fall under one of nine categories of exemptions. A well-intentioned law, the response to FOIA requests can leave something to be desired, with agencies citing exemptions or imposing serious burdens of time and cost on parties requesting information. An effort to update and reform the legislation has been in the works for several years, and on July 1st, President Obama signed into law the FOIA Improvement Act of 2016.
The bill does not provide new resources for agencies to comply with FOIA requests. This is unfortunate because the slowness of an agency’s response is a common criticism of FOIA compliance (and could be used to delay or stonewall transparency efforts). However, the bill does put into law several changes, that if successfully implemented, could make it easier to access government information even if you weren’t the one making a request under FOIA.
The new law puts into law a ‘presumption of openness’ that both the Clinton and Obama Administrations applied to their FOIA responses. That means agencies would comply with requests unless the information is specifically barred from disclosure by law or that it would present a ‘forseeable harm’ to one of the exemptions in FOIA. It also limits to 25 years the exemption for documents used for an agency’s ‘deliberative process’ (internal decision making).
The law pushes forward the efforts to digitize FOIA requests and compliance. It requires the development of a government-wide online portal through the Office of Management and Budget for FOIA requests. It would also make available online records that have been released in response to FOIA requests, with an emphasis on those records that have been requested multiple times or have otherwise been determined to be subject to frequent requests.
This is unlikely to be the end of public pressure to reform and update FOIA. Various groups interested in public disclosure of government activity will continue to argue that the public interest should favor disclosure more than it currently does, and the limited resources available for FOIA will continue to make compliance an afterthought for agencies.
The Obama Administration announced additional FOIA actions in connection with the signing. The Chief FOIA Officers Council outlined in the law (formalizing an existing group) will have its first meeting on July 22, and it will work on identifying the top challenges in complying with the law. The Department of Justice pilot program on proactively posting FOIA responses online (rather than distributing them just to the requesters) will be reviewed and perhaps expanded. Guidance on implementing the new FOIA law will be released later this year, along with specifics on a cross-agency goal to improve agency compliance with FOIA requests.
As there is little time left in this Administration, it’s worth considering how either of the presumptive Presidential candidates may approach the new FOIA in their tenure as President. Given the high-profile instances of each campaign failing to disclose relevant information or act in ways that lack transparency, it seems likely to me that the open government groups aren’t looking to let up in their campaigns to make government decisions and activities more transparent.