Earlier this summer longtime champions of the Freedom of Information Act (FOIA), Senator Patrick Leahy (D-VT) and Senator John Cornyn (R-TX) introduced S. 2520, the FOIA Improvement Act. The bill builds on several reforms that were included in a bill passed unanimously by the House (HR 1211) and, crucially, puts limits around the use of one of the most overused and abused exemptions in the law. The fact that more than 50 organizations from across the political spectrum and with a wide variety of missions joined in supporting the bill shortly after its release is a tribute to how important it is for the Senate to pass S. 2520. It’s important to understand, though, exactly what the bill will and will not do. Below we take you through some assumptions that you might make about the possible effect of passing the bill.
Assumption 1: Passing the bill will lead to more requests.
The number of FOIA requests submitted by the public has risen every year since 2009. From 2009 to 2013, the number of requests per year rose by almost 37%. While the number of requests made after the FOIA Improvement Act is signed into law might go up, it is impossible to distinguish between the effect of the law and other changes in technology or culture that are already driving up public interest in the FOIA. Regardless of the cause, a growing hunger for government information is a sign of a healthy democracy. The FOIA is a critical tool for understanding what the government is doing and why, and holding government officials accountable for their actions.
Assumption 2: More lawsuits will be filed if the bill is passed.
In general, there are only about .02% FOIA lawsuits filed per year compared to the number of requests made. Very few people who file FOIA requests even file an appeal of their initial determination, much less see the inside of a courtroom over their request. The bill actually makes changes to the law that could decrease the number of FOIA lawsuits. First, the bill locks in the current Administration’s policy of releasing information unless the release is prohibited by law or would create a foreseeable harm, and also requires agencies to weigh the public interest in release before invoking the exemption for inter- and intra-agency records; taken, together, these changes should lead to more records being released by the government. If more records are released, requesters will have less cause to take an agency to court. Second, the bill puts the Office of Government Information Services (OGIS) in a better position to meet its mandate of mediating FOIA disputes.
Assumption 3: People will make ridiculously broad requests to get out of paying fees.
In 2007 Congress changed the law so that agencies could not collect fees if they missed the statutory deadlines to respond to a requester. S. 2520 closes a loophole that agencies are using to charge requesters fees if they claim “unusual circumstances.” Making an over-broad request is a very bad way to actually obtain records from the government. Broad requests are put in a queue with other “complex” requests. Since FOIA requests are handled on a first in, first out basis, a requester in the “complex” track can expect to wait much longer before the agency even begins to process their requests. Additionally, broad requests take longer for an agency to process than a request that clearly identifies what a requester wants to receive.
Assumption 4: Passing the bill will radically change how FOIA processors do their job.
The bill largely locks into law how agencies should be processing FOIA requests under the Administration’s current policy. To comply with the guidelines Attorney General Holder issued in 2009, agencies were required to begin applying the foreseeable harm standard. Additionally, the requirement that the public interest in release be weighed before a record is withheld under the exemption for inter- and intra-agency records is not a foreign concept to FOIA processors. Agencies already conduct a similar assessment before withholding records under the exemptions covering privacy information.
Assumption 5: Courts might force agencies to release private or national security information.
No. The foreseeable harm standard only applies if the agency has any discretion as to whether or not to withhold requested records. Under the law, agencies are required to withhold properly classified national security information, any information exempt from disclosure by another statute, confidential business information, and some information covered by the Privacy Act of 1974.