Possible Changes To FOIA

By Cliff Montgomery – Mar. 31st, 2015Boththe Senate and the House of Representatives are planning a number ofchanges to the Freedom Of Information Act (FOIA), an immensely importantlaw which allows the public a chance to access information held by thefederal government.Forobvious reasons, citizens should always know of any possible changes toFOIA. The Congressional Research Service (CRS) released a study of thismatter in February.Below, provides its readers with a major part of the CRS report:“TheFreedom of Information Act (FOIA), originally enacted in 1966, providesthe public presumed access to federal government information (5 U.S.C.§552). This access is available to any person, regardless ofcitizenship, and does not require justification on the part of therequestor.“Thispresumptive right to access is limited only when the requestedinformation falls within the scope of nine statutory exemptions, whichare established by law:1.Information properly classified for national defense or foreign policypurposes as secret under criteria established by an executive order,2. Information relating solely to agency internal personnel rules and practices,3.Data specifically exempted from disclosure by a statute other than FOIAif that statute a.) requires that the data be withheld from the publicin such a manner as to leave no discretion on the issue, b.) establishesparticular criteria for withholding information or refers to particulartypes of matters to be withheld, or c.) specifically cites to thisexemption (if the statute is enacted after October 28, 2009, the date ofenactment of the OPEN FOIA Act of 2009),4. Trade secrets and commercial or financial information obtained from a person that is privileged or confidential,5.Inter- or intra-agency memoranda or letters that would not be available by law except to an agency in litigation,6. Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy,7. Certain kinds of records compiled for law enforcement purposes,8. Certain information relating to the regulation of financial institutions, and9. Geological and geophysical information and data.“Theseexemptions are intended to prevent the disclosure of certain types ofrecords, with examples including those related to law enforcementproceedings, personally identifiable information, or records pertainingto national security.“FOIA has been subsequently amended multiple times, most recently by the OPEN FOIA Act of 2009 (P.L. 111-83).“InMarch of 2009, Attorney General Eric Holder distributed a memorandumrelated to FOIA to the heads of all executive departments and agencies.The memorandum built upon a previous memorandum from President Obama,which stated that FOIA ‘should be administered with a clear presumption:In the face of doubt, openness prevails.’“Toreinforce this point, the memorandum from the Attorney Generalinstructed agencies to preemptively disclose information prior to apublic request, partially disclose information in the event that someaspect of a record must be withheld, and not withhold information simplybecause it falls within the strict legal parameters of an exemption.“Further,the memorandum stated that The Department of Justice will defend adenial of a FOIA request only if (1) the agency reasonably foresees thatdisclosure would harm an interest protected by one of the statutoryexemptions, or (2) the disclosure is prohibited by law.“Thenew policy established by this memorandum is often referred to as ‘thepresumption of openness.’ This guidance from the Obama Administrationdeparted from the previous Administration’s position on FOIAimplementation, in which the Department of Justice stated that it woulddefend any decision to withhold information under a FOIA exemption ifthe decision had a ‘sound legal basis’ and did not ‘present anunwarranted risk of adverse impact on the ability of other agencies toprotect other important records.’“Inrecent years, some Members of Congress have expressed interest infurther amending FOIA to address both the presumption of openness andother issues, especially the electronic accessibility of agency records.“Duringthe 113th and 114th Congresses, legislation to amend FOIA wasconsidered in both the House and the Senate. In both chambers, thecurrently proposed FOIA amendments address many of the same issues,often with similar language. The bills, however, also containsubstantive differences.“Thisreport provides an overview of two FOIA bills in the 114th Congress, S.337 [Senate bill] and H.R. 653 [House of Representatives bill], andprovides analysis of certain FOIA-related provisions within each.”“Forinstance, S. 337 provides a timetable for the assessment of fees if anagency fails to comply with a statutory FOIA request response deadline.“Conversely,H.R. 653 would authorize applicable federal inspectors general toreview agencies’ FOIA compliance and recommend the agency head takepotential adverse actions against improper or negligent execution of thelaw. In addition, H.R. 653 includes new language seeking to narrow theexemption that provides for agencies’ withholding of intra- orinter-agency records.”