On June 30, President Obama signed into law the “FOIA Improvement Act of 2016” (PL 114-185). NCH supported the legislation codifying comprehensive reforms to the Freedom of Information Act that increase public access and restore a presumption of openness in the handling of federal records. The law represents the first major improvements to the FOIA in over a decade.
On July 4, our nation celebrated the 240th anniversary of the signing of the Declaration of Independence. The day also marked the 50th anniversary of the enactment of the Freedom of Information Act, which gave citizens the right to access federal records and thus hold their government accountable.
According to the White House, the new law accomplishes several objectives.
Importantly, it strengthens the “foreseeable harm” standard, which obligates federal agencies to adhere to a standard of openness: they must release information unless “the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” The administration’s FOIA guidelines, issued in 2009 by then Attorney General Eric Holder, directed all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. This action rescinded the 2001 guidelines of former Attorney General John Ashcroft, which permitted government agencies to justify a decision to withhold documents by claiming a “sound legal basis” for doing so. The FOIA Improvement Act codifies the Holder guidance. It will now apply to all future administrations.
The new law also limits Exemption 5, the broadest of the nine exemptions to FOIA, which includes documents touching on “the deliberative process.” Under Exemption 5, agencies can deny the release of documents they claim pertain to advice, recommendations, and opinions that help constitute the policymaking process, so that current agency personnel may be candid in the documents they create. Exemption 5 can even apply to documents requested after a policy is finalized and presented to the public. But the new law establishes that “the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested,” according to the Department of Justice. By placing a 25-year time limit on Exemption 5, the law opens up a new potential source of research materials to scholars.
As important as online research is today, the FOIA Improvement Act draws attention to the need for a consolidated online FOIA request portal. Already committed to creating this system, the White House announced that it will launch in 2017. The new law also codifies long-standing Department of Justice guidance that agencies make records and documents available to requesters in an electronic format and post online records that are requested three or more times.
Finally, the new law clarifies and reforms FOIA administration issues. It formalizes the Justice Department’s existing meetings of federal chief FOIA officers into a Chief FOIA Officers Council. The group will develop recommendations for increasing compliance and efficiency in responding to FOIA requests. It will also identify, develop, and coordinate initiatives for increasing transparency and compliance with FOIA. Requesters who have been denied will be notified that mediation services are available from the Office of Government Information Services, thanks to the law’s best-practices provisions for the Justice Department and the National Archives and Records Administration. The law also establishes a 90-day minimum for requesters to file FOIA appeals.
While the new bill is a step in the right direction, Politico’s Josh Gerstein noted, “The legislation was watered down somewhat from earlier versions before it passed the Senate in March. The changes were made to overcome resistance by some federal agencies and their supporters on Capitol Hill.”1 Among the most notable provisions missing from the bill was a White House proposal to make Congress subject to FOIA for the first time.
The National Coalition for History supported the passage of the new law and worked closely with our colleagues at OpenTheGovernment.org for many years to advocate that Congress pass the bill. Patrice McDermott, executive director of OpenTheGovernment.org, said, “We can take a moment to celebrate FOIA’s 50th anniversary with a stronger and better statute that enhances the public’s ability to hold officials accountable. There is still work to be done, though, especially in terms of ensuring strong FOIA implementation in the next administration and Congress.”
I recently concluded a two-year term on the FOIA Advisory Committee, appointed by Archivist of the United States David Ferriero. We issued our final report to the archivist in May; it is available at archives.gov/files/ogis/assets/final-report-2014-2016-foia-advisory-committee.pdf. The panel’s charter was renewed for an additional two years.