Secrecy: FOIA

FOIA Improvement Act of 2016 Becomes Law

By David Ryan
Friday, July 1, 2016, 7:00 AM

Last night, President Obama signed Senate Bill 337, the “FOIA Improvement Act of 2016,” into law. The bill enacts several key reforms to the 1966 Freedom of Information Act, and received a fair amount of attention when it passed the House of Representatives earlier this month. Below is a brief recap of the Act’s primary features.

The new law enacts a “presumption of openness,” under which an agency may only withhold requested records if it “reasonably foresees” that disclosure would harm one of the interests protected by FOIA’s exemptions (such as national security, trade secret protection, or personal privacy), or if disclosure is otherwise unlawful. This provision of SB 337 mirrors the language of FOIA guidelines promulgated by Attorney General Eric Holder in 2009, pursuant to President Obama's pledge for “unprecedented transparency” upon taking office. A presumption of openness, whether it is mandated by statute or executive branch policy, limits agencies’ discretion to withhold records that technically qualify for a FOIA exemption even if no harm would result from their disclosure. Attorney General Janet Reno instituted a presumption of openness during the Clinton Administration, but the Bush Administration rescinded that policy and replaced it with one stating that DOJ would defend agency decisions to withhold records unless they “lacked a sound legal basis.” Now that Congress has codified the presumption, future administrations will not be able to backtrack in similar fashion.

SB 337 has little effect on FOIA’s complicated scheme of exemptions, which agencies routinely rely on when denying the public’s requests for records and during subsequent litigation. The only change is to FOIA’s Exemption 5, which exempts from disclosure “inter-agency or intra-agency memorandums which would not be available by law to a party other than an agency in litigation with the agency.” Courts have interpreted this confusingly-worded provision as exempting documents that are normally privileged in the context of civil discovery. Accordingly, the government often invokes Exemption 5 to shield documents that it contends are protected by attorney-client privilege, the attorney work product doctrine, or the deliberative process privilege. (The last of these is unique to litigation against the government, and applies to the executive branch’s pre-decisional and deliberative internal communications.) SB 337 does not affect Exemption 5 as it pertains to work product or attorney-client privilege, but it sunsets the deliberative process privilege after 25 years. In other words, agencies are now unable to invoke deliberative process when an individual’s FOIA request seeks documents created more than 25 years prior to the date of the request.

Additionally, the new law enacts a number of ‘housekeeping’ measures designed to facilitate FOIA requests and production. These include requirements for federal agencies to make records available to requesters in electronic form and to publish online any records that have been requested successfully three or more times. Previously, only some agencies had adopted these common sense practices as part of their FOIA compliance programs. SB 337 also limits the government’s ability to charge fees for duplicating and searching for records when it fails to meet FOIA’s deadlines for responding to requests. And, perhaps most helpfully, the Act requires the Office of Management and Budget to oversee the creation of a government-wide system for submitting FOIA requests online. Once the system is fully operational, individuals will be able to request documents from every federal agency through a single online interface, instead of having to go through each agency’s preferred system for submitting requests.

How much will all of this cost? For context, in 2013 federal agencies employed approximately 4,200 full-time staff to fulfill FOIA requests, and spent $446 million on related activities. The new requirements of SB 337 are expected to cost taxpayers an additional $5 million dollars annually, increasing government-wide spending on FOIA by about one percent. The additional funding will have to come through the normal authorization and appropriations process, since the Act doesn’t specifically provide for any additional expenditures. That aspect of SB 337 presumably facilitated the bill moving through Congress with strong bipartisan support. However, the more cynical among us might also attribute the bill's popularity in Congress to the fact that it does not change Congress’ longstanding practice of exempting itself from FOIA, notwithstanding the executive’s frequent critiques on that point.