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In late June, President Obama signed the FOIA Improvement Act of 2016, bringing important changes to the 50-year old federal transparency law. The measure brings some changes to the FOIA process, notably in exemptions, that will affect requests filed after the law was signed June 30.
Among the law's biggest changes are new limits on FOIA exemptions.
First, the “foreseeable harm” standard has been codified into law. This means that even if a requested record falls within one of FOIA’s nine exemptions, the agency still has to release it unless it reasonably foresees that disclosure would harm an interest protected by an exemption or if disclosure is prohibited by law.
Journalists who file an administrative appeal over a withheld document can and should challenge an agency’s failure to comply with the foreseeable harm standard. The legislative history of the 2016 amendments makes clear that agencies must determine whether the release of “particular documents,” not simply generic categories of records, will cause foreseeable harm. More detailed guidance on the scope and requirement of the new standard will have to be decided by future litigation.
Second, there is now a 25-year sunset on the deliberative process privilege, which is part of Exemption 5. If the records requested were created 25 years (or more) before the date of the request, agencies cannot rely on the deliberative process privilege to withhold them.
The new law also made changes in how records are requested and released.
The federal government must create a consolidated online request portal that allows anyone to submit a FOIA request to any agency from a single website. There is no deadline for the creation of such a portal, however, and it is unlikely to be operational any time soon. (Meanwhile, independent resources, such as the Reporters Committee’s iFOIA portal, can be used to send FOIA requests to almost every federal agency.)
More federal records are required to be proactively disclosed under the amendments. An agency must make available online those records it determines have or are likely to become the subject of requests. How that determination will be made is not yet clear.
Agencies are also required to put records online that “have been requested three or more times” which likely means records that have been requested and released three or more times.
The executive branch is also going beyond the “rule of three” requirement with a “release to one, release to all” policy, which would post publicly online all records released under FOIA.
The Reporters Committee recently conducted a survey of journalists on the public release policy. Preliminary results show overwhelming approval from journalists on the policy, as long as there is a delay between the time the records are released to the requester and when they are posted online. The complete survey results will be available in a report to be released in the coming weeks.
Additional changes to administrative appeals, fees, and dispute resolution also can be found in the new regulations.
Journalists and other requesters now have at least 90 calendar days to file administrative appeals. Previously, there was no statutory deadline for when such appeals needed to be filed, and agency regulations varied greatly.
There are only minor fee changes to take into account for those who qualify as a “representative of the news media.” Ordinarily, an agency cannot charge such requesters any fees if it fails to make a determination for a request within 20 working days (except in certain circumstances). Under the 2016 amendments, agencies can charge duplication fees if they fail to meet the 20-day deadline if three requirements are met: (1) “unusual circumstances apply”; (2) more than 5,000 pages are necessary to respond to the request; and (3) the agency provides timely notice of the unusual circumstances and discusses with the requester how they can limit the scope of the request. This change should not affect requests where a fee waiver has been granted.
When providing a requester with a “determination,” agencies are also now required to inform them about the dispute resolution services offered by the FOIA Public Liaison of the agency and the Office of Governmental Services (OGIS). OGIS’s independence was strengthened by the 2016 amendments, which observers expect will lead to better oversight and administration of FOIA across the federal government.
For those who want to take a deeper dive into the specifics of the amendments, a redline of FOIA incorporating the amendments has been published online by the Department of Justice.