Nearly 50 years after the Freedom of Information Act (FOIA) was signed into law by President Lyndon B. Johnson on July 4, 1966, the House of Representatives passed the FOIA Oversight and Implementation Act of 2015 (HR 653). It sent the bill to the Senate along with H. Rept. 114-391, which amends language in 5 U.S. Code § 552 to reflect the new environment. (For example, “for public inspection and copying” would be replaced by “in an electronic, publicly accessible format.”)
The House Committee on Oversight and Government Reform also released “FOIA Is Broken: A Report.” It explores the responsiveness of agencies in processing FOIA requests and cites “[e]xcessive delays and redactions” and agencies that have refused “to produce documents or intentionally” extended the time-to-deliver. This lack of transparency in government operations diminishes the trust of the people in their government.
Introduced in February 2015 by Rep. Darrell Issa (R-Calif.) with bipartisan support, HR 653 provides the public with greater access to federal government agency information. The Congressional Research Service summarizes it as follows:
The bill requires agencies, in administering FOIA, to: (1) make information disclosable under such Act available to the public in an electronic, publicly accessible format; and (2) make available to the public records of general interest that inform the public of the operations and activities of the government or that have been requested three or more times.
The Office of Management and Budget is directed to ensure the operation of an online request portal that allows a member of the public to submit a FOIA request for records to any agency from a single website.
The bill establishes a presumption of openness by prohibiting an agency from withholding information otherwise disclosable under FOIA unless: (1) the agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption to FOIA, or (2) disclosure is prohibited by law.
According to TheWeekinCongress.com, the proposed legislation “establishes a Chief FOIA Officers Council for developing recommendations for increasing compliance and efficiency information dissemination, increased transparency, and promote performance measures.” Additionally, OpenTheGovernment.org notes, “The bill includes reforms that will have notable tangible impact,” codifying President Barack Obama’s directive on the presumption of openness with regard to FOIA and buttressing “the presumption in favor of disclosure,” or as Issa says, shifting “the burden to the presumption of yes.”
The Federal FOIA Ombudsman and the FOIA Advisory Committee
HR 653 also expands the duties of the Office of Government Information Services (OGIS), which serves as the federal FOIA ombudsman. Created within the National Archives and Records Administration (NARA) when the OPEN Government Act of 2007 amended FOIA, OGIS reviews FOIA compliance and policy, mediating disputes between those making FOIA requests and agencies that may have not been as forthcoming as the requester hoped. A calendar on the OGIS website allows the public to see the schedule for FOIA compliance reviews that will be conducted in the coming year. OGIS announces completed compliance review releases on its blog, via Twitter (@FOIA_Ombuds), and on its website.
Established in May 2014, the FOIA Advisory Committee is one of a series of efforts the Obama administration has taken to modernize FOIA. The full committee meets each quarter to deliberate actions it should take to study aspects of FOIA that could be improved and recommends “legislative action, policy changes or executive action.”
Composed of 10 members from within the federal government and 10 nongovernmental members with FOIA expertise (such as lawyers, advocates, academics, and journalists), the committee is expected to “foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.”
The current term expires in May 2016, but David Ferreiro, the 10th Archivist of the U.S., announced that the FOIA Advisory Committee’s charter will be extended another 2 years so that it can continue its work. Those interested in joining the committee should review the bylaws to determine eligibility.
The First Committee Meeting of 2016
Perhaps due to unusually cold weather, few members of the public attended the Jan. 19 open meeting of the FOIA Advisory Committee, the agenda for which can be found on its website. (Interested parties will be able to view the session on YouTube, where all of the previous meeting videos have been posted. Video footage and a transcript of the Jan. 19 session should be available within 30 days, but the public can read the Twitter feed from the session in the meantime.) The committee is exploring ways to stream future sessions so more individuals can participate. The Jan. 19 meeting focused on the work and recommendations of three subcommittees: Fees, Oversight and Accountability, and Proactive Disclosures.
FOIA Fees Subcommittee Report
The Office of Management and Budget (OMB) provides a uniform fee schedule and guidelines for agencies to follow, placing FOIA requesters into three broad categories—commercial use, noncommercial use, and all others. (Subcategories are detailed in a Federal Register notice.)
OMB’s guidance on fees was written in 1987, before the internet, and has not been updated in nearly 20 years. Therefore, confusion reigns:
- Rates for search time and duplication vary by agency, as does the determination process for waiving fees. For example, commercial-use requesters “are charged all three types of fees—search, review, and duplication fees. …” Noncommercial-use requesters include “educational institutions, noncommercial scientific institutions, and representatives of the news media. … Requesters in this category are not charged for search or review time, but they must pay for duplication after the first 100 pages. …” Anyone who doesn’t fit into either of these categories must “pay for search time after the first two hours and duplication after the first 100 pages.”
- The definition of several of the subcategories is no longer relevant in an age of online usage, citizen journalism, and bloggers. In the 21st century, who qualifies as a member of the media? Is a fee for duplication relevant if material is sent electronically or reformatted (e.g., as a PDF) and posted online?