FOIA Improvement Act of 2016 Streamlines Access to Federal Records
This year both the United States Senate and House of Representatives unanimously passed the FOIA Improvement Act of 2016
. President Obama is expected to sign the Act before July 4, the 50th anniversary of the passage of the Freedom of Information Act (FOIA). The Act is intended to expand public access to federal records under FOIA by clarifying the intent of FOIA, simplifying the process for making requests, and implementing more oversight. The most significant provisions of the Act are the following:
Codifies the presumption of openness under FOIA. In 2009 President Obama issued a memo to agencies directing them that the federal government’s default position is openness; this portion of the Act makes that presumption the law of the land. Under the Act, the agency must disclose the requested documents unless the disclosure would harm protected interests under FOIA such as national security or trade secrets.
Creates a central website for FOIA requests. This “one-stop shop” will help those wanting to make requests, particularly those who are making requests for the first time, learn how to do so. Agencies maintain the ability to run their own sites in addition to the central website.
Requires the agency to make documents available in electronic format. This is particularly helpful with voluminous productions where it would be useful to obtain the documents in a format where they can be efficiently converted into a searchable format. In addition, if the same set of documents are requested three or more times, the agency must make them available on its website or a FOIA site.
Waives the fees the agency may charge for the production of records if certain deadlines are not met.
Orders each agency to designate a Chief FOIA officer, and requires this person to conduct training and monitor compliance with the agency’s FOIA obligations. It also creates a Chief FOIA Officers Council to develop metrics to measure performance and make recommendations regarding compliance with the agencies’ FOIA obligations.
Creates a mediation service within the Office of Government Information Services to mediate disputes between requestors and agencies. The mediator may issue advisory opinions upon the request of the requestor or agency.
The Act is a positive development for companies who frequently request federal records. The government now has more incentives to respond to requests completely and in a timely manner. However, the Act could be a negative development for companies who submit information to the federal government and would like to shield that information from competitors or public scrutiny. Certain exemptions to disclosure under FOIA remain, including “[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential.” See 5 U.S.C. § 552(b)(4). And most agencies have developed rules providing submitters of confidential information shall be notified when a person has requested the disclosure of such information pursuant to FOIA and setting forth procedures for the submitter to object to its disclosure. See 44 C.F.R. § 5.57 (applicable to FEMA). But the presumption of openness and more scrutiny on decisions to deny disclosure could mean the agencies, and ultimately courts if requestors file lawsuits challenging agency decisions, are more inclined to disclose information when the determination of whether it constitutes a trade secret or not is a close call.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.