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S. 337 (114th): FOIA Improvement Act of 2016

Fifty years ago, the Freedom of Information Act, or FOIA, was enacted to give the public a right to access records held by the executive branch that, although not classified, were not otherwise available to them.

However, in recent years, the government has increasingly used loopholes and other tactics to deny, delay, or redact the disclosure of information under the law. According to an Associated Press analysis, the Obama Administration set a new record in 2014 for “censoring government files or outright denying access to them” under FOIA. It was the Administration’s second year in a row setting that records.

Now here’s the shocker: Congress is making serious progress on a bipartisan plan to fix FOIA and improve the public’s access to public information.

The Senate votes to close FOIA loopholes

On Tuesday the Senate unanimously approved legislation that would expand public access to government documents and records under FOIA and make it easier for citizens, journalists, businesses, and anyone else to access the information on the Internet.

The bill, the FOIA Improvements Act of 2015, essentially codifies an executive memorandum that was release by President Obama on the first day of his presidency, calling on federal agencies to use a “presumption of openness” when deciding whether or not to approve FOIA requests.

Under the bill, government agencies would only be able to legally deny requests for records if they can “reasonably foresee” a specific harm to one of the interests that are protected by existing FOIA exemptions — things like national security information, trade secrets, and sensitive law enforcement proceedings. That would mean that even if government officials could make a case that a document meets the technical requirements to qualify for an exemption, if they can’t articulate a specific foreseeable harm to a protected interest, the document would have to be released.

This “presumption of openness” language is design to close loopholes like FOIA exemption b(5), which allows the government to withhold any “interagency or intra-agency communication” and any “deliberative process” documents from the public. This broad exemption, known commonly as the “deliberative process” exemption was used 81,752 times in 2013 to justify denying requests for records. Nate Jones at Unredacted describes some of the the logical twists that have been used by the Obama Administration to justify using this exemption to keep government information secret.

The bill also requires federal agencies to make certain records that must be disclosed by law available online for easier public consumption. Further, any records that have been requested under FOIA at least three times would have to be posted publicly online. The Office of Management and Budget would also be required to created a website that people could use to submit FOIA requests to any agency.

For further details about what the bill would do, see Demand Progress’s summary of the bill.

“Most transparent administration ever” — or not

According to documents obtained recently by the Freedom of the Press Foundation, the Obama Administration, which Obama has repeatedly claimed to be “the most transparent administration in history,” secretly lobbied against a version of this bill in 2014. That version passed both the Senate and the House, but in non-identical forms, and it ended up dying when former Speaker John Boehner (R-OH) tabled it as the legislative session was coming to an end. Now that the documents have been released, it is widely assumed that Boehner tabled it at the last second in response to the Obama Administration’s lobbying.

In the documents revealed by Freedom of the Press Foundation, the Obama Administration argued that much of the bill, including sections based nearly word-for-word on the Administration’s own 2009 memorandum, would create difficult burdens for the government. For example, the Administration argued against the “presumption of openness” provision, saying that, “despite being seemingly analogous” to the administration’s own proposal, the bill language would expand FOIA’s “carefully crafted exemption scheme” in an unacceptable way.

“This is a much higher threshold to meet and would put a vast array of information at risk of disclosure,” the Administration said. “The risk is most obvious with regard to exemptions that typically do not allow discretionary releases, such as the exemptions that cover classified information and protect personal privacy, but it would have a devastating effect with regard to every exemption.”

The Administration also objected to the bill’s requirements that agencies review their records and post records of public interest online, the creation of a single, government-wide website for submitting FOIA requests, and other minor provisions.

However, following the public release of the lobbying documents, the Administration appears to have had a change of heart. On Tuesday, following passage of the bill, Politico reported that a White House spokesperson confirmed to them that if Obama was presented with the bill he would sign it.

Last updated Mar 18, 2016. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jul 1, 2016.

(This measure has not been amended since it was passed by the Senate on March 15, 2016. The summary of that version is repeated here.)

FOIA Improvement Act of 2016

(Sec. 2) This bill amends the Freedom of Information Act (FOIA) to:

require federal agencies to make their disclosable records and documents available for public inspection in an electronic format; require agencies to make available for inspection in an electronic format records that have been requested three or more times (frequently requested records); prohibit an agency from charging a fee for providing records if the agency misses a deadline for complying with an FOIA request unless unusual circumstances apply and more than 5,000 pages are necessary to respond to the request; prohibit an agency from withholding information requested under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law (presumption of openness); limit the FOIA exemption for agency communications to allow the disclosure of agency records created 25 years or more before the date of a FOIA request; require the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters; expand the authority and duties of the Chief FOIA Officer of each agency to require officers to serve as the primary agency liaison with OGIS and the Office of Information Policy; establish a Chief FOIA Officers Council to develop recommendations for increasing compliance and efficiency in responding to FOIA requests, disseminating information about agency experiences, identifying, developing, and coordinating initiatives to increase transparency and compliance, and promoting performance measures to ensure agency compliance with FOIA requirements; and require the Director of the Office of Management and Budget to ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records to any agency from a single website. (Sec. 3) The head of each agency (i.e., each authority of the U.S. government, excluding the Congress, U.S. courts, governments of U.S. territories and possessions, and the government of the District of Columbia) is required to: (1) review agency regulations and issue regulations on procedures for disclosure of records in accordance with the amendments made by this bill, and (2) include in such regulations procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS.

(Sec. 4) The program for the efficient management of federal agency records is expanded to require agency heads to establish procedures for: (1) identifying records of general interest or use to the public that are appropriate for public disclosure, and (2) posting such records in a publicly-accessible electronic format.

(Sec. 5) No additional funds are authorized to carry out the requirements of this bill.

(Sec. 6) This bill shall take effect on its enactment date and shall apply to all FOIA requests for records made after its enactment date.