On June 13, Congress passed the FOIA Improvement Act of 2016, and President Obama signed the bill into law on June 30, nearly 50 years after the original Freedom of Information Act (“FOIA”) was first enacted. The new law was effective as of June 30.
On July 19, the U.S. Department of Justice Office of Information Policy (“OIP”) issued its first guidelines relating to the Act, prompting agencies to begin carrying out new FOIA mandates in the way they respond to and give notice regarding FOIA requests. OIP said it will continue to issue guidance on the Act “on a rolling basis.”
In his 2009 Message for the Heads of Executive Departments and Agencies regarding FOIA, President Obama stated that the presumption of openness requires that “the Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.” Likewise, the presumption also “means that agencies should take affirmative steps to make information public” and “not wait for specific requests from the public.”
Nonetheless, in practice, the government’s enforcement of FOIA has been spotty. Responses to FOIA requests are often slow and, once they come, grudging and filled with redactions. The new amendments to FOIA are meant to impose statutorily a preference for disclosure that, up until now, has been reliant on each President’s policy pronouncements and willingness to abide by and enforce those pronouncements within the Executive Branch.
Presumption of Openness Codified
The new law amends FOIA by codifying the “presumption of openness” that has often been used to characterize the manner in which federal agencies are to disclose information to the public, as a matter of policy. Thus, under FOIA as now amended, an agency may refuse to disclose requested information “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption . . . or disclosure is prohibited by law.” This language presents an additional legal hurdle that agencies must clear prior to withholding information. Because this presumption toward disclosure was not previously statutory (nor previously stated in such an emphatic manner), this change may signal a dramatic shift in the way agencies handle FOIA requests. While, on the one hand, it may become easier for corporate and individual FOIA requesters to obtain information through FOIA, companies that submit information to the government in compliance with regulatory requirements or voluntarily must be even more cautious to ensure that such information is adequately protected from disclosure, whether by agreement, statute or under a FOIA exemption. The July 19 OIP guidelines do not address the presumption of openness, but future guidance may weigh heavily in favor of disclosure of government-held information.
All nine existing FOIA exemptions will remain available for agencies to claim in declining to produce requested documents and information. The new law, however, significantly changes Exemption 5 for “inter-agency or intra-agency memorandums and letters, which would not be available by law to a party other than an agency in litigation with the agency,” which is often invoked by the government. The phrase “which would not be available by law to a party other than an agency in litigation with the agency” has long been interpreted to exclude from production not only information protected by the attorney-client privilege and attorney work product doctrine, but also the so-called “deliberative process” or “executive” privilege, which is said to protect an agency’s decision-making processes. Under the amended law, an agency may not claim this “deliberative process” privilege for records and information that are more than 25 years old. Although some advocates have suggested that this sunset provision does not go far enough in limiting agencies’ ability to protect the decision-making process, it is still a significant change compared to agencies’ previous ability to claim the exemption for an indefinite period of time. The July 19 OIP guidelines do not address the change to FOIA Exemption 5, but future guidelines likely will do so. The Act did not amend any other exemptions.
Additional Key Provisions
The FOIA Improvement Act includes several additional changes that will affect the FOIA landscape.
- Absent “unusual circumstances,” agencies generally must respond to FOIA requests within 20 working days. But, under the new law, if an agency misses a FOIA response deadline, then the agency cannot charge fees or costs for producing the requested records. In general, agencies do not charge requesters for the first two hours of search time or the first 100 pages of duplication of records for production in response to a FOIA request. Since agencies find it almost impossible to meet the statutory deadlines for larger requests, this provision largely may eliminate FOIA administrative fees imposed on requesters.
- Agencies must allow 90 days from the date of the adverse determination (i.e., the decision to withhold information) to file an appeal. Previously, FOIA did not set a timeline for appeals, and many agencies set appeal deadlines of 30 days by regulation. The new OIP guidelines emphasize that agency response letters must notify FOIA requesters of the 90-day appeal period.
- Disputes over the release of requested information can be mediated through the Office of Government Information Services (“OGIS”) or through the agency’s internal FOIA Public Liaison (“FPL”). Both OGIS and FPLs were established by the OPEN Government Act of 2007. OGIS first opened in 2009 and since then has handled several thousand cases on a voluntary basis. Although FOIA dispute resolution will remain voluntary, agencies are now required to notify requesters of their right to seek dispute resolution through the FPL or OGIS. The new OIP guidelines emphasize the need to begin immediately notifying requesters of this right, likely because recent data show that federal agencies and departments spent more than $31 million on FOIA litigation in 2015 (in addition to $450 million in FOIA administration). As requesters become increasingly aware of dispute resolution mechanisms, there will likely be a decrease in litigation.
- The Office of Management and Budget must oversee the creation and operation of a consolidated FOIA request website through which the public may request information from all federal agencies. Currently, the Department of Justice maintains a website with a list of agency points of contact, but agencies use different online forms and formats to accept FOIA requests. The new centralized website will utilize a single format and allow the requester to send multiple requests through a standardized online form, but requesters will not be limited to making requests online.