FOIA Reform Legislation Nearing the Finish Line

    Apr 13, 2016

    After several years of delay despite strong bipartisan support, enactment of legislation to update the federal Freedom of Information Act (FOIA) is on the verge of reaching the president’s desk.  The Senate unanimously approved its version of the bill (S. 337) on March 15. The House of Representatives acted on a similar bill (H.R. 653) in January.

    “The people have a right to know what their government is up to, but we often hear about how federal agencies are either slow to respond to records requests or even look for ways to avoid disclosing public records,” stated Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary. “The Senate’s sign-off on this bipartisan bill to improve our federal records requests process and bring greater transparency to government is a good step to helping FOIA work again.”

    The Senate-passed bill codifies the “presumption of openness” standard established in a March 2009 memorandum from then Attorney General Eric Holder to the heads of all executive departments and agencies. The memorandum instructed agencies, when considering the release of government information under FOIA, to preemptively disclose information prior to a public request, partially disclose information in the event that some aspect of a record must be withheld, and not withhold information simply because it falls within the strict legal parameters of an exemption.

    The measure requires agency heads to identify records of general interest and to make such records publicly available in an electronic format. It allows agencies to withhold documents only when disclosure is barred by law or when they can point to a specific “foreseeable harm.” It also creates a single FOIA request portal for all agencies, limits the amount of time that certain documents are exempt from disclosure, and makes more documents available online.

    “By increasing the amount of agency information made available through proactive disclosure, this legislation will help to modernize the records management policies and practices of federal agencies,” said Liz Icenogle, ARMA International’s director of government affairs. “It will be an additional catalyst to already-existing efforts by the federal government to preserve, maintain, and handle government records in electronic formats.”

    While the House and Senate bills are similar, the Senate version does not require inspector general reviews or disciplinary actions for FOIA violations. In addition, the Senate bill does not require courts to award fees to prevailing complainants. Those differences are likely to be resolved in the Senate’s favor as the White House indicated that the president would sign that version of the bill. As a result, the House is likely to take up and pass the Senate bill in the coming weeks and send it to the president.

    The Washington Policy Brief is an online advisory that contains brief summaries of recent legislative and regulatory issues that may affect the records and information management profession. Further information about the issue is accessed by clicking on the link provided at the end of each summary.


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