On June 13, 2016, the House passed Senate Bill S.337, or the FOIA Improvement Act of 2016, which had previously passed the Senate in early March by unanimous consent. The bill is now on its way to President Obama, who has already expressed approval of the bill and is expected to sign the bill into law in the upcoming weeks.
Once enacted, the FOIA Improvement Act of 2016 will make substantial changes to the manner in which federal agencies disclose records and information to the public by amending the Freedom of Information Act (FOIA). Amendments to FOIA provide for the following:
- A requirement that federal agencies make records and documents available to requesters in an electronic format (e.g., PDF or online download);
- A requirement that federal agencies make frequently requested records and documents (requested 3 or more times) publically available using an electronic format (i.e., made available on the federal agency’s website or FOIA site);
- A prohibition on federal agencies charging record production fees for costs associated with the production of requested records and documents if the agency has missed an applicable FOIA deadline,
- A requirement that federal agencies disclose requested information unless the agency reasonably foresees the disclosure of requested records or documents resulting in harm to a protected interest under FOIA, such as information that pertains to national security, documents containing confidential information or trade secrets, and documents or records containing medical information;
- Permissible disclosure of agency records created 25 or more years before the date of a FOIA request;
- Use of mediation services provided by the Office of Government Information Services (OGIS) to resolve disputes between federal agencies and FOIA requesters over the validity or adequacy of an agency’s response to a FOIA request;
- Development of new authority and duties for Chief FOIA Officers in each federal agency along with the creation of a Chief FOIA Officers Council to increase compliance and efficiency in responding to FOIA requests; and
- A requirement that the Director of the Office of Management and Budget (OMB) oversee the creation and ensure the operation of a consolidated online FOIA request portal that will allow the public to submit requests to all federal agencies on a single website.
Despite the changes being made to FOIA, the FOIA Improvement Act of 2016 does not provide federal agencies with any additional funds to carry out the requirements of the Act. This is due in large part to the expectation that electronic production of the requested documents and records is expected to be more cost-effective. Further, even though the FOIA Improvement Act of 2016 does not alter any of the current exemptions to disclosure under FOIA, federal agencies are expected to have greater accountability for failing to disclose information as required under FOIA a result of the added limitation on when an agency can deny a request and use of mediation services to resolve FOIA related disputes.
We believe these changes can lead to real improvements in the FOIA process. Too many times, agencies have withheld documents under the veil of agency deliberation. We hope the agencies will realize that technical documents, like evaluations of scientific or technical submission, are not deliberative documents and should be disclosed in accordance with the U.S. Supreme Court’s decision in EPA v. Mink, which held that “purely factual material contained in deliberative memoranda” that is “severable from its context” and can be released without harm to the deliberative process should be disclosed. 410 U.S. 87 (1972). See also, Corporation v. Department of Energy. 617 F.2d 854 (1980)(holding same).
Applying this rationale, federal courts have already determined that scientific reports and internal reviews prepared by federal agencies such as the U.S. Food and Drug Administration (FDA), should be disclosed when the requested documents are routinely prepared and do not depend on confidentiality to ensure quality or effectiveness of preparation. See e.g., Sterling Drug Inc. v. Harris, 488 F.Supp. 1019, 1028 (S.D.N.Y. 1980)(holding that FDA was required to disclose internal reviews and technical documents after finding that “disclosure of internal reviews ‘will not harm the regulatory efforts of the agency, but indeed will serve to foster better public understanding of the internal discussion about scientific and medical issues that must always characterize an open and responsive regulatory agency.’”) Scientific evaluations by agencies need to be subject to review and critiques by people outside the agency. One hopes that, in particular, the Occupational Safety and Health Administration (OSHA) will take the hint and change its practice of keeping their risk assessments and draft standards confidential until after the Small Business Regulatory Enforcement Fairness Act (SBREFA) panel process. But we’re not holding our collective breath.