Congress has passed reforms to the Freedom of Information Act, which EFF hopes signals the beginning of a larger overhaul of the transparency law that will mark its 50th birthday in July.
Earlier this year both chambers passed dueling FOIA reform bills. The House passed the FOIA Oversight and Implementation Act (H.R. 653) in January, while the Senate approved it's own version – the FOIA Improvement Act of 2016 (S. 337) – in March. On Monday, the House approved the Senate bill, which will head to President Obama. He has previously indicated that he would sign it.
EFF supported the Senate bill over the House version because it did not contain harmful carve-outs for national security and intelligence agencies (for EFF’s breakdown of both bills, click here and here). We are therefore pleased to see the Senate version pass.
The Senate bill’s biggest change to FOIA codifies a restriction on agencies’ ability to arbitrarily withhold records. Under the bill, agencies cannot withhold records unless another law prohibits their disclosure or the agencies articulate how disclosure will harm an interest protected by FOIA’s exemptions.
EFF remains cautiously optimistic that this new language will lead to greater government openness.
The Senate bill also contains other changes to FOIA, including a provision that should help requesters seeking historic records. The bill puts a 25-year limit on agencies’ claims that records would disclose internal decision-making, in what is known as the deliberative process privilege. It also mandates that the government create a central online portal for anyone to file a request with any federal agency.
Although the bill is a positive step forward, it falls short of fixing some of FOIA’s biggest problems, including agency delay and stonewalling. EFF has previously called on Congress to provide more resources – both technical and financial – to speed up agency processing of FOIA requests. We think those incentives should be combined with penalties for agencies that do not meet deadlines or for personnel who actively thwart disclosure.
We’ve argued for big changes to the law that would mandate disclosure of records in close cases – the public interest in disclosure should outweigh secrecy. We’ve also argued for small changes, including adding a comma to make controversial law enforcement techniques more public and a requirement that all agencies accept FOIA requests via email.
EFF would like to thank Sens. John Cornyn (R-TX.) and Patrick Leahy (D-VT.) for sponsoring the Senate bill, along with Rep. Jason Chaffetz (R-UT.) for getting the bill through the House. We look forward to working with them on future improvements to FOIA.