July 13, 2016 Celeste Monforton, DrPH, MPH 0Comment

Advocates for government transparency, including journalists and watchdog groups, were pleased to witness President Obama signed the FOIA Improvement Act. He did so on June 30 without fanfare. After it was signed into law, the Reporters Committee for Freedom of the Press (RCFP) commented:

“The signing marked the culmination of open government advocates’ battle to reform part of FOIA ahead of the law’s 50th anniversary on July 4th.”

And Open the Government.org called it:

“…a herculean effort on the part of Congressional leaders, staff members, and open government advocates who have been working to push the FOIA reform legislation that is critical to ensuring government accountability.”

You’ll note the remark fails to mention the Obama Administration’s role in the legislative process. Others have written that part of the story (e.g., here, here.)

What’s significant about the law? A senior investigative reporter with VICE News told RCFP:

“I think the reform bill definitely addresses many, many concerns that we, as journalists, have with regards to FOIA. Most notable [is] the B-5 exemption, which is the most abused and overused FOIA exemption.”

Exemption 5 applies to

“inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.”

Agencies say they need the exemption to protect the “deliberative process.” For example, agencies often hold back drafts of documents. They don’t necessarily want the public to be able to compare an early version of a policy document with the final one. They’ll also often hold back the details of email exchanges between agency staff, for example as they weigh the pros and cons of a decision. Open government advocates who see abuse of the B5 exemption call it the “withhold it because you want to exemption.”

Under the new law, there’s a change that will apply to the B5 exemption:

“the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.”

A big hiccup may occur if agencies don’t comply with records retention policies. You may want to alert them now of your particular interest in certain records, and then you or future colleagues may have to wait up to 25 years to obtain them.

The Society for Environmental Journalists provides a list of changes to the law such as:

  • Allows agencies to withhold information “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law” (presumption of openness);
  • Requires agencies that receive three or more requests for a record to proactively make the record available, typically by posting it on the internet; and
  • Requires the Office of Management and Budget to oversee operation of a consolidated online portal for FOIA requests to any agency from a single website.

The law gives agencies six months to revise their policies to conform with the new law.

Our democracy is much stronger when investigative journalists and other watchdogs have access to agency records and can expose mismanagement, ineptitude, abuse of power, and the like (e.g., here, here, here.) Kudos to those who persisted to make the legislative improvements to FOIA.

 

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