The U.S. Senate yesterday sent to the President, who is widely expected to sign it into law, S. 337, the Freedom of Information Act (FOIA) Improvement Act of 2016, after years of slow progress and setbacks in Congress.
The bipartisan bill governing public access to federal agency records reflects the work of sponsoring Senator John Cornyn (R-Texas) and Senator Patrick Leahy (D-Vermont), as well as Reps. Daryl Issa (R-California) and Elijah Cummings (D-Maryland).
The bill amends the Freedom of Information Act (FOIA) to, as described by CONGRESS.GOV,
- require federal agencies to make their disclosable records and documents available for public inspection in an electronic format;
- require agencies to proactively make available for inspection in an electronic format records that have been requested three or more times (frequently requested records)
- prohibit 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
- prohibit 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);
- limit the FOIA exemption for agency communications (deliberative process privilege) to allow the disclosure of agency records created 25 years or more before the date of a FOIA request;
- require the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters;
- expand 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;
- establish 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
- require 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.
- 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 Act, and (2) include in such regulations procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS.
- 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.
Note: Underlined provisions have no counterparts in the California Public Records Act.