President Barack Obama today signed a bill that significantly reforms and improves access to public records under the Freedom of Information Act (FOIA). The signing marked the culmination of open government advocates’ battle to reform part of FOIA ahead of the law’s 50th anniversary on July 4th.
One of the most notable provisions is the law’s mandate for agencies to operate from a presumption of openness, ensuring that information is withheld only under one of FOIA’s nine exemptions. The bill codifies Obama’s 2009 memorandum sent on his first day in office — which ordered federal departments to operate under this presumption.
The law also paves the way for the creation of a single online portal to accept FOIA requests for any agency, similar to FOIA online, already in use by 12 agencies and offices. The Office of Government Information Services (OGIS) will also be strengthened with the reforms, permitting it to make recommendations for improving FOIA without necessarily seeking input from other agencies.
A White House fact sheet provides more details about the law and announced new members of the FOIA Advisory Committee.
“Our very democracy is built on the idea that our government should not operate in secret. The FOIA Improvement Act will help open the government to the 300 million Americans it serves and ensure that future administrations place an emphasis on openness and transparency,” said Sen. Patrick J. Leahy (D-Vt.) when the bill passed the Senate in March.
“The bill effectively cripples the ability of federal bureaucrats and power hungry government officials to keep information from the American people,” said Rep. Darrell Issa (R-Calif.), a co-sponsor of the reform bill, in a statement after it passed the House. “I’ve lead the fight for three years now to improve the broken FOIA process, and today, I’m glad to see these efforts become a reality.”
Under the new reforms, FOIA exemption 5, which allowed agencies to withhold privileged information indefinitely, will limit the withholding of “deliberative process” documents — such as memoranda, letters and drafts — to 25 years. Agencies’ consistent overuse of the provision had caused open government advocates and journalists to refer to the exemption as the “withhold it because you want to exemption.”
“I think the reform bill definitely addresses many, many concerns that we, as journalists, have with regards to FOIA,” said Jason Leopold, a VICE News senior investigative reporter who has heavily relied on FOIA requests for his reporting. “Most notable [is] the B-5 exemption, which is the most abused and overused FOIA exemption.”
The new law also requires agencies to submit annual FOIA processing statistics a month earlier so they are available for Sunshine Week in March, according to an SGI analysis.
The bill, introduced in the House by Rep. Elijah Cummings (D-Md.) and Issa more than a year ago, passed the House by voice vote on Jan. 11. A similar Senate version of the bill, spearheaded by Senators John Cornyn (R-Texas.), Charles Grassley (R-Iowa.), and Leahy received unanimous consent on March 15.
On Jun. 13, the House passed the Senate’s FOIA Improvement Act of 2016 and sent it to the president for his signature on June 22. FOIA hadn’t undergone major reforms since 2007.
In what became a decade-long battle to get the new reforms passed, open government leaders faced multiple obstacles. In 2008, the president’s proposed budget sought to defund OGIS, one of the reasons why the new law strengthens the FOIA ombudsman office’s independence.
“[OGIS] is a very small office with a huge mandate,” said Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition of media groups, including the Reporters Committee for Freedom of the Press, that lobbied for the reform. “One of the things that we’ve learned over the past decade is that there are a lot of people who would like to limit the effectiveness of that office,”
In 2014, a similar FOIA reform bill never saw a final vote in the House due to the banking sector’s concerns with disclosure of records related to financial institutions, according to Patrice McDermott, executive director of OpenTheGovernment.org. Recently disclosed documents revealed the Department of Justice was actively lobbying against the major reform provisions, claiming that reform would increase administrative costs and cause delays in FOIA processing.
“DOJ has never met a FOIA bill that it likes. It always opposes reform,” McDermott said.
President Lyndon B. Johnson originally signed FOIA into law on July 4th, 1966, despite his misgivings and years of congressional hearings on the need for a disclosure law. The law has been amended roughly every 10 years to adapt to technological advancements and to improve government transparency.
“While there is still much work to be done, the provisions enacted today will help ensure the law lives up to its purpose — informing the public about what its government is up to,” said Adam Marshall, Jack Nelson Dow Jones Foundation legal fellow at the Reporters Committee.
“As we approach FOIA’s birthday this July 4th we should not only celebrate what has been accomplished over the last few decades, but also imagine what we, the people, want it to look like 50 years from now,” he added.