Congress Passes Amendments to the FOIA
On June 30, 2016 President Obama signed into law the FOIA Improvement Act of 2016. The Act addresses a range of procedural issues, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute resolution services at various times throughout the FOIA process. The Act also codifies the Department of Justice’s “foreseeable harm” standard, amends Exemption 5, creates a new “FOIA Council,” and adds two new elements to agency Annual FOIA Reports. OIP has created a redline version of the FOIA showing the changes made by the Act. Each of the principal changes is also summarized and discussed below.
This section provides the short title for the Act, which is the "FOIA Improvement Act of 2016."
This section directly amends the FOIA in various ways, as summarized below.
The “Rule of 3” is Codified for Frequently Requested Records:
- Agencies are now required to “make available for public inspection in an electronic format,” records “that have been requested 3 or more times.”
Codification of Department of Justice’s Foreseeable Harm Standard:
- Agencies “shall withhold information” under the FOIA “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”
- Agencies shall “consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible.”
- Agencies shall “take reasonable steps necessary to segregate and release nonexempt information.”
- This provision does not require disclosure of information “that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under [Exemption] 3.”
Sunset on Deliberative Process Privilege:
- Exemption 5 of the FOIA is amended to provide that “the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.”
Changes in Procedures When Processing Requests:
Extending Time Limits - New Requirement when extending deadline beyond an additional ten days:
- Whenever agencies extend the time limits by more than ten additional working days, in the written notice to the requester they “must notify the requester of right to seek dispute resolution services from the Office of Government Information Services.”
Fees - Further limitation on Assessing Search Fees (or, for requesters with preferred fee status, duplication fees) if Response time is delayed:
- When agencies determine that “unusual” circumstances apply to the processing of a request, and they have provided “timely written notice to the requester,” the delay is “excused for an additional 10 days.” “If the agency fails to comply with the extended time limit,” it may not charge search fees (or for requesters with preferred fee status, may not charge duplication fees).
Exception: If unusual circumstances apply and “more than 5000 pages are necessary to respond to the request,” agencies may charge search fees (or, for requesters in preferred fee status, may charge duplication fees) if timely written notice has been made to the requester and “the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request.”
Court Determination that "exceptional circumstances" exist: If a court determines that “exceptional circumstances exist,” the agency’s failure to comply with a time limit “shall be excused for the length of time provided by the court order.”
Response Letters - New Required Elements for Response Letters
When agencies make their determinations on requests they must offer the services of their FOIA Public Liaison and must notify requesters of their services provided by the Office of Government Information Services (OGIS). They must also allow requesters a period of at least 90 days within which to file an administrative appeal. Specifically, agencies must include in their notification to the requester:
- “the right of such person to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination:
- the right to appeal within a period of time “that is not less than 90 days after the date of such adverse determination,” and
- “the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services.”
New Duties for Chief FOIA Officers
There are now additional duties and responsibilities assigned to agency Chief FOIA Officers.
These officials are now required to:
- “offer training to agency staff regarding their [FOIA] responsibilities,” and
- “serve as the primary liaison with the Office of Government Information Services and the Office of Information Policy.”
Chief FOIA Officers are also now required to “review, not less frequently than annually, all aspects” of their agency’s administration of the FOIA “to ensure compliance” with the FOIA’s requirements. The following topics are to be included in the review:
- Agency regulations,
- Disclosure of records under paragraphs (a)(2)[ proactive disclosure provision] and (a)(8) [foreseeable harm standard],
- Assessment of fees and fee waivers,
- Timely processing of requests,
- Use of exemptions, and
- Dispute resolution services with the Office of Government Information Services or the FOIA Public Liaison.
Creation of "Chief FOIA Officer Council"
The FOIA Improvement Act of 2016 creates a new Chief FOIA Officer Council within the Executive Branch which will serve as a forum for collaboration across agencies and with the requester community to explore innovative ways to improve FOIA administration.
- The Directors of the Office of Information Policy and the Office of Government Information Services are to serve as co-chairs of the newly created Chief FOIA Officer Council.
- Membership of the Council is composed of:
- The Deputy Director for Management of OMB,
- The Chief FOIA Officer for each agency, and
- Any other officers as designated by the co-chairs.
- GSA is to provide administrative support to the Council.
- The duties of the Council shall include the following:
- Develop recommendations for increasing compliance & efficiency under the FOIA.
- Disseminate agency experiences, ideas, best practices, and innovative approaches related to the FOIA.
- Identify, develop and coordinate initiatives to increase transparency and compliance with the FOIA.
- Promote development and use of “common performance measures for agency compliance” with the FOIA.
- The Council shall “consult on a regular basis” with requesters. It shall “meet regularly and such meetings shall be open to the public” and at least annually the Council must have an open meeting that permits interested members of the public to appear and present statements.
Additions to Annual Reports
There are additions to agency reporting requirements for their Annual FOIA Reports.
- On or before February 1 of each year, agencies must submit their Annual FOIA Report to the Attorney General and to the Director of OGIS
- The Annual FOIA Report must include two new elements:
- The number of times “the agency denied a request for records under subsection (c)” of the FOIA, and
- The “number of records that were made available for public inspection in an electronic format under subsection (a)(2).”
- The raw, statistical data used in the agency’s Annual FOIA Report must be available without charge, in an aggregated, searchable format, that may be downloadable in bulk.
- The Attorney General must notify Congress that agency Annual FOIA Reports are posted by March 1st.
Agency Reference Guides
Agency FOIA Reference Guides must be made available in electronic format.
Department of Justice's Litigation & Compliance Report
There are changes made to the requirements for the Department of Justice’s FOIA Litigation and Compliance Report.
- The Department’s annual Litigation and Compliance Report detailing the Department's efforts to encourage government wide compliance with the FOIA is now due to Congress and the President on March 1st.
- The disposition for each case listed in this report must include “each subsection, and any exemption, if applicable,” involved in each case.
- The raw statistical data used in the report must be available without charge, in a searchable format, that is downloadable in bulk.
Revised Duties for OGIS
The duties for OGIS have been revised and new reporting obligations are included.
- OGIS shall “identify procedures and methods for improving compliance” under the FOIA.
- In providing mediation services, OGIS may issue advisory opinions at its discretion or upon the request of any party to the dispute.
- Not less than annually OGIS shall submit to Congress and the President, and make available to the public electronically:
- A report on its findings from its reviews of agency policies, procedures, and compliance.
- A summary of its mediation services, including any advisory opinions issued and the number of times each agency engaged in dispute resolution with the assistance of OGIS or the FOIA Public Liaison.
- Any legislative and regulatory recommendations to improve FOIA.
- OGIS is not required to obtain prior approval of any officer or agency of the United States before submitting to Congress reports, recommendations, testimony, or comments, if such submissions include a statement indicating that the views expressed are those of the OGIS Director and not necessarily the views of the President.
- Not less than annually, OGIS shall hold a public meeting on its activities and “allow interested persons to appear and present oral or written statements.”
Creation of Consolidated Online Request Portal
The FOIA Improvement Act of 2016 requires that a new consolidated online request portal be built.
- The Director of OMB, in consultation with the Attorney General, shall ensure the operation of a consolidated online request portal that:
- Allows the public to submit a request to any agency from a single website, and
- May include additional tools that OMB finds will improve FOIA.
- Agencies may still create or maintain independent online portals for submission of requests.
- OMB shall establish standards for interoperability between the consolidated portal and agency case management systems.
Regulation Review & Issuance Within 180 Days
The FOIA Improvement Act of 2016 requires a review of agency regulations.
- The head of each agency must, no later than 180 days after enactment, review their agency regulations and “issue regulations on procedures for the disclosure of records under [the FOIA] in accordance with the amendments made by section 2.”
- Agency FOIA regulations shall include procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS.
Proactive Disclosures through Records Management
The FOIA Improvement Act of 2016 amends Section 3102 of the Federal Records Act, 44 U.S.C. § 3102, to include a requirement that agencies establish "procedures for identifying records of general interest or use to the public that are appropriate for public disclosure, and for posting such records in a publicly accessible electronic format."
No Additional Funds Authorized
The FOIA Improvement Act of 2016 does not authorize additional funds to carry out the requirements of the FOIA.
Effective Date of the Amendments
The FOIA Improvement Act of 2016 takes effect on the date of enactment and shall apply to any request made after June 30, 2016.