The Freedom of Information Act (FOIA) is a key enabler of government transparency. It serves a vital function to preserve open government and provide sunshine onto government operations and initiatives.
In recognition of this critical role, on June 13, 2016 the House passed the Senate-passed FOIA reform bill, S. 337, the FOIA Improvement Act under suspension of the rules, completing an 18-month effort by Congress to update this critical law. The bill was presented to the President for signature on June 22nd and is expected to be signed into law.
Below is a summary of the key provisions of the legislation and the possible impact. In particular, we believe the requirements that expand the role of the Chief FOIA Officer, that establish a Chief FOIA Officers Council and require the Director of the OMB to ensure the operation of a consolidated online request portal will present a significant opportunity for companies that provide FOIA-related software tools.
The bill doesn’t specifically require individual agencies to update their IT to enhance compliance with the new law but given the requirement to create an online request portal it is expected that agencies will need to invest in new technology to achieve effective compliance. Look for opportunities to provide solutions that would assist agencies in meeting FOIA’s 20-day response deadline, and updating and automating their internal processes to speed up response times.
As passed, S.337:
requires federal agencies to make their disclosable records and documents available for public inspection in an electronic format;
requires agencies to make available for inspection in an electronic format records that have been requested three or more times (frequently requested records);
prohibits an agency from charging a fee for providing records if the agency misses a deadline for complying with an FOIA request unless unusual circumstances apply and more than 5,000 pages are necessary to respond to the request;
prohibits an agency from withholding information requested under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law (presumption of openness);
limits the FOIA exemption for agency communications to allow the disclosure of agency records created 25 years or more before the date of a FOIA request;
requires the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters;
expands the authority and duties of the Chief FOIA Officer of each agency to require officers to serve as the primary agency liaison with OGIS and the Office of Information Policy;
establishes a Chief FOIA Officers Council to develop recommendations for increasing compliance and efficiency in responding to FOIA requests, disseminating information about agency experiences, identifying, developing, and coordinating initiatives to increase transparency and compliance, and promoting performance measures to ensure agency compliance with FOIA requirements; and
requires the Director of the Office of Management and Budget to ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records to any agency from a single website.
In addition, the head of each agency (i.e., each authority of the U.S. government, excluding the Congress, U.S. courts, governments of U.S. territories and possessions, and the government of the District of Columbia) is required to: (1) review agency regulations and issue regulations on procedures for disclosure of records in accordance with the amendments made by this bill, and (2) include in such regulations procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS.
Further, the program for the efficient management of federal agency records is expanded to require agency heads to establish procedures for: (1) identifying records of general interest or use to the public that are appropriate for public disclosure, and (2) posting such records in a publicly-accessible electronic format.
Critics of the legislation, expressed concern that although it is a positive step forward it doesn’t address some of the key issues that have affected FOIA over the years, including more resources – both technical and financial – to speed up agency processing of FOIA requests
Cost of implementation: CBO estimates that implementing S. 337 would cost $20 million over the 2015-2020 period, assuming appropriation of the necessary amounts. Enacting S. 337 could affect direct spending by agencies not funded through annual appropriations (such as the Tennessee Valley Authority).
Therefore, pay-as-you-go procedures apply. CBO estimates that any net changes direct spending by those agencies would not be significant. Enacting the bill would not affect revenues.
Funding: No additional funds are authorized to carry out the requirements of this bill.