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Federal Freedom of Information Act (“FOIA”) Amendments Seek to Increase Transparency and Streamline Process

On June 30, 2016, President Obama signed the FOIA Improvement Act, amendments to the Freedom of Information Act (“FOIA”) designed to improve the agency FOIA response process and limit the types of documents the federal government can withhold from disclosure. The bill passed the Senate by unanimous consent in early March and the House by voice vote in June.

Significantly, the law seeks to curb what has been considered an overuse of FOIA’s exemptions, including the exemption applicable to privileged inter- and intra-agency communications (“Exemption 5”), by prohibiting an agency from withholding information unless the agency “reasonably foresees that disclosure would harm an interest protected” by one of the FOIA exemptions, or disclosure is prohibited by law. The most common ground for withholding documents under Exemption 5 is the “deliberative process privilege,” which seeks to protect the agency decision making process by encouraging open, frank, internal agency discussions on matters of policy and protect against premature disclosure of policies before they are enacted. The other grounds are the attorney-client privilege and attorney work product. The new law seeks to increase government transparency by requiring agencies to look behind the purposes of these privileges, and determine on a case-by-case basis if disclosure would harm a protected interest. For example, an agency may need to assess whether the disclosure of any pre-decisional communication, even one that is consistent with the final decision and is not, on its face, controversial, could be withheld under the new law. Whether agencies will uniformly assert that disclosure would result in harm remains to be seen, but the “reasonably foresees” language of the statute is ripe for litigation relating to non-disclosure. In contrast to that vague “sunshine” provision, the law also states that the deliberative process privilege will not apply to records created 25 years or more before the FOIA request, establishing a bright line temporal threshold for disclosure.

The law also attempts to bring FOIA into the digital age, calling for the creation of a centralized portal for FOIA requests across the federal government and imposing an affirmative requirement on agencies to publish frequently requested documents and records online. Interestingly, the law also states that no additional funds will be provided to carry out the law’s requirements, mainly because electronic production of documents should ultimately be more cost-effective. By focusing on the hard costs of making copies, the law ignores the additional administrative burden that agencies will likely face in evaluating FOIA requests under the new test discussed above, and the likely increase in FOIA requests that will occur as the process becomes more accessible.

Additionally, the law amends FOIA to:

• require federal agencies to make their disclosable records and documents available to the public in an electronic format (such as PDF or online download);
• prohibit an agency from charging search or duplication fees when the agency fails to meet the notice requirements and time limits set by existing law; and
• require the Office of Government Information Services to offer mediation services to resolve disputes between agencies and FOIA requesters.

With the new law in place, those seeking government documents will have a presumption of openness in their favor, which, it is hoped, will lead to an increased flow of government information to the public. As FOIA requests often precede litigation, greater transparency might also result in an increase in actions against the federal government, with plaintiffs being better able to build a case against an agency. Further, the added limitation on when federal agencies can deny a FOIA request will increase accountability for failing to disclose information as required. The new mediation services, an alternative to more costly litigation, may encourage more requesters to dispute document denials, thus further increasing accountability.

Although the amendments have broad support, they have been subject to criticism. Although the White House ultimately supported the bill, it took issue with the fact that Congress continued to exempt itself from FOIA. The bill also fails to address the issue of private companies that request documents and resell them to other outlets. These commercial resellers have been found to make up the majority of FOIA requests, overwhelming agencies and crowding out citizen requests.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Ted Hassi, an O'Melveny partner licensed to practice law in New York and Washington, DC, John Rousakis, an O'Melveny counsel licensed to practice law in New York and New Jersey, and Eric Rothenberg, an O'Melveny partner licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted. 

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