Obama Signs FOIA Improvement Legislation into Law

July 6, 2016

Just in time for the 50th anniversary of the original Freedom of Information Act, President Obama June 30, 2016, signed into law a package of amendments to strengthen it.

It was a bipartisan legislative accomplishment that had taken several Congresses to come together. The last set of amendments to FOIA was enacted in 2007.

Congress cleared the bill (S 337) for President Obama's signature June 13, when the House agreed to a version passed by the Senate March 15. Both House and Senate passed the final measure by voice vote — a sign that partisanship and dissent were absent.

The bill codifies the "presumption of openness," a standard declared at the beginning of the Obama administration. Openness has not always been the norm. For example, a 2001 memo issued by Attorney General John Ashcroft at the start of the Bush administration promised to defend federal agency denials of FOIA requests. In 2009, Obama ordered that records be disclosed when agencies had discretion, unless there was a reason not to. The new bill would deprive future administrations of the option of changing that policy.

As enacted, S 337:

  • Requires that all disclosable records be provided in an electronic format.
  • Requires agencies that receive three or more requests for a record to proactively make the record available, typically by posting it on the internet.
  • Prohibits agencies from charging search fees (and some duplication fees) of requesters if the agency has missed any response deadlines. In such cases, there may be exceptions for "unusual" circumstances or when the quantity of responsive records is more than 5,000 pages.
  • Allows agencies to withhold information "only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption" or "disclosure is prohibited by law." (Presumption of openness)
  • Requires agencies to "consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible."
  • Requires agencies to "take reasonable steps necessary to segregate and release nonexempt information."
  • Limits the "deliberative process" exemption (Exemption 5) to allow disclosure of records created 25 years or more before the date of a request.
  • Requires the Office of Government Information Services (OGIS, known as the FOIA ombud) to offer mediation services to resolve disputes between FOIA requesters and the agencies.
  • Adds new requirements when agencies extend time limits by more than ten working days. Agencies must notify requesters of their right to seek dispute resolution via OGIS.
  • Expands the duties of agency Chief FOIA Officers to make them primary liaison with OGIS and the Justice Department's Office of Information Policy.
  • Requires Chief FOIA Officers to train agency staff on their responsibilities under FOIA.
  • Requires Chief FOIA Officers to review annually many aspects of their agency's FOIA performance.
  • Establishes a Chief FOIA Officers Council to increase efficiency and compliance with FOIA and develop recommendations and compliance measures.
  • Requires the Office of Management and Budget to oversee operation of a consolidated online portal for FOIA requests to any agency from a single website.
  • Requires agencies, within 180 days of enactment, to review their FOIA regulations and issue revised rules for compliance with the new FOIA law.
  • Requires agencies to establish procedures for identifying records of general public interest and for posting them proactively online.
  • Specifically denies authorization of funds beyond what is already authorized to carry out FOIA.
  • Specifies that the new amendments take effect on the date of enactment and apply to any request made after June 30, 2016.

Upon signing the FOIA amendments, President Obama announced what he said were "new steps toward ensuring openness and transparency in government." He highlighted his administration's development of a "release to one is a release to all" policy. That began in 2015 with a six-month pilot involving seven volunteer federal agencies. Those agencies proactively posted their FOIA responses, ensuring that all citizens — not just the requesters — had access to released information. Obama said he was directing the FOIA Officers Council to look at practical issues in implementing such a standard.

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