Today, the President signed the FOIA Improvement Act, codifying into law comprehensive bipartisan reforms to the federal Freedom of Information Act (FOIA) for the first time in nearly a decade. The signing of the bill comes days before the 50th anniversary of the FOIA, signed into law on July 4, 1966. The FOIA Improvement Act is the result of a herculean effort on the part of Congressional leaders, staff members, and open government advocates who have been working to push the FOIA reform legislation that is critical to ensuring government accountability.
Importantly, the reform bill codifies the presumption of openness — requiring records be released unless there is a foreseeable harm or legal requirement to withhold them. This language mirrors the Obama Administration’s and the Department of Justice’s 2009 guidance on FOIA, which reversed the policy of the Bush administration that had encouraged agencies to limit discretionary disclosures of information. With these legislative changes, the law makes clear that FOIA, under any administration, must be approached with a presumption of openness.
Additionally, the reform bill limits to a period of 25 years the ability of agencies to keep internal deliberations confidential under Exemption 5; mandates that the government create a “central online request portal; and requires proactive disclosure of material, released to any person, that has or might “become the subject of subsequent requests for substantially the same records” or if the information has been requested three or more times.
Since its enactment, FOIA has been amended multiple times in an effort to improve public access to information and efficiency in processing requests. Notably, the OPEN Government Act of 2007 created the Office of Government Information Services (OGIS) to serve as the FOIA ombudsman. The FOIA Improvement Act of 2016 further strengthens OGIS, by giving it the authority to report directly to Congress and provide legislative recommendations without approval from other executive branch agencies.
The signing of the FOIA reform bill comes in the final days of a “50 Days of FOIA” campaign that OTG launched in May with a broad coalition of open government and accountability organizations and media outlets. The campaign has been counting down the days to the 50th anniversary of the FOIA (on July 4, 2016) by highlighting the importance of the FOIA, while promoting the passage of much-needed reform legislation.
“This bill marks an important milestone; it significantly advances the public’s right to know, and includes provisions that the government openness and accountability community has been promoting for the last decade,” according to Patrice McDermott, Executive Director of Open The Government. “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.”