When wielded responsibly, with precision and with an eye toward outside-the-box solutions, FOIA can open up real advantages for contractors.
Freedom of Information Act (FOIA) updates bookended the Obama administration. We previously covered the 2007 congressional update that immediately preceded Obama’s taking office. We now offer insight into how federal contractors can best wield the FOIA tool in the context of one of the Obama-era executive actions that has survived the first 85 days of the Trump presidency and shows no indication, as of this writing, of being targeted for repeal.
When Congress passed a new FOIA update last summer — the FOIA Improvement Act of 2016 — the White House concurrently issued “additional steps” that dovetail with and support the changes Congress mandated. Many of these changes create new utilities that should be of particular interest to federal contractors:
- The Obama-era “presumption of openness” has been codified.
- Going forward, agencies shall withhold information under FOIA only when there is a foreseeable harm to an interest that is protected by an exemption — or when disclosure is legally prohibited. Even then, agencies must consider whether they can make a partial disclosure.
- The “Rule of 3” has also been codified.
- Once a record has been requested three or more times, agencies must make that record available for public inspection electronically.
- Agencies are incentivized to be timely — with the stick, rather than the carrot.
- One of requestors’ principal pet peeves is agency timeliness in providing responses. Now, when an agency responds that it will be extending its deadline by any real length of time — beyond 10 days — the agency may no longer charge search fees for the FOIA request, subject to a limited exception.
In addition, President Obama directed the new Chief FOIA Officers Council to develop a global federal government policy out of lessons learned from the Department of Justice’s pilot program. The pilot program was designed to determine the viability of a policy that would direct agencies to proactively post their FOIA materials online, with the council set to begin work with the Office of Management and Budget on further guidance. President Obama also launched a newly centralized online FOIA portal, FOIA online, and tasked DOJ and other agencies with developing a consolidated FOIA request portal in 2017.
While much remains uncertain as Trump administration policy takes shape, President Trump has not publicly criticized the Obama-era FOIA executive actions, and those actions’ favorability to business may make them likely candidates to carry forward in the Trump administration. As we have seen when counseling our clients in this regard, companies benefit from the increased availability of documents. Further, the timeliness incentive provides an advantage to the federal contractor in creative ways.
First, contractors should consider FOIA as a tool to develop new business opportunities in the federal sphere, proactively identifying government requirements as they come onboard. That leg up in understanding agency requirements and insight into potential acquisition strategy can put contractors miles ahead of competitors who limit themselves to a timeframe of responding as RFIs and RFPs drop, allowing firms to focus and direct internal resources to prepare in advance. But the timeliness incentives may make FOIA a useful tool in proposal preparation even when a contractor has not had the opportunity to get in front of the requirement, and is instead responding in real time to a newly released solicitation.
A second avenue for using FOIA as a supplementary strategy is as a companion to litigation. When an agency sets up roadblocks, proves recalcitrant in sharing documents, or submits incomplete discovery, beleaguered contractors may consider FOIA as an alternative route to the documents and information they require in order to prosecute or defend their case.
This is not to say that taking full advantage of FOIA’s reach is a simple prospect — contractors must take care not to use it frivolously or to harass. This is particularly the case in litigation, where ethical standards rightly prohibit parties from bullying their opponents. But when wielded responsibly, with precision and with an eye toward outside-the-box solutions, FOIA can open up real advantages for contractors.