FOIA Improvement Act – Improving Federal Freedom Of Information

FOIA Improvement Act of 2016 ~  S. 337

On June 30, 2016, President Obama signed into law the FOIA Improvement Act.  For the bill’s legislative history as well as the enrolled text of the bill click HERE.

This legislation updates the Freedom of Information Act (5 U.S.C. Section 552) and will –

  • require federal agencies to make their disclosable records and documents available for public inspection in an electronic format;
  • require agencies to make available for inspection in an electronic format records that have been requested three or more times (frequently requested records);
  • prohibit an agency from charging a fee for providing records if the agency misses a deadline for complying with an FOIA request unless unusual circumstances apply and more than 5,000 pages are necessary to respond to the request;
  • prohibit an agency from withholding information requested under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law (presumption of openness);
  • limit the FOIA exemption for agency communications to allow the disclosure of agency records created 25 years or more before the date of a FOIA request;
  • require the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters;
  • expand the authority and duties of the Chief FOIA Officer of each agency to require officers to serve as the primary agency liaison with OGIS and the Office of Information Policy;
  • establish a Chief FOIA Officers Council to develop recommendations for increasing compliance and efficiency in responding to FOIA requests, disseminating information about agency experiences, identifying, developing, and coordinating initiatives to increase transparency and compliance, and promoting performance measures to ensure agency compliance with FOIA requirements; and
  • require the Director of the Office of Management and Budget (OMB) to ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records to any agency from a single website.

FOIA portal

What might be of particular interest to legal researchers is the the requirement for the development of an internet FOIA portal.   The Obama Administration announced that Department of Justice (DOJ) will work with OMB, EPA, and other agencies to launch a consolidated FOIA request portal in 2017.  This portal will initially provide for centralized submission of requests and will continue to be enhanced to include other features to guide a requester through the FOIA process, improve the public’s ability to locate already posted information, and track requests online, among other functions.  The Administration will announce further details about the functionality of the portal and the timeline for launching its initial phases in the coming months.

Other resources

Information resources for this new law include:

Fact Sheet: New Steps Toward Ensuring Openness and Transparency in Government

Congress.gov – Senate Bill 337    (provides details of the legislative history of the bill)

Federal as compare to state law

The FOIA Improvement Act involves federal government activity.  Researchers interested in California government activities should turn to California’s Public Records Act and the California Information Practices Act.  The California Code citations for these laws are provided below.

The historical relationship between the federal and state law is discussed in Lexis’ California Forms of Pleading and Practice § 429.61 “Relationship Between State and Federal Law” –

5 U.S.C.S. §§ 552 and 552a both govern only federal agencies [see 5 U.S.C.S. § 551 (defining agency for purposes of 5 U.S.C.S. §§ 551–559)]. The California Information Practices Act (Civ. Code §§ 1798–1798.78) governs only state agencies, and California’s Public Records Act (Gov. Code §§ 6250–6267) applies only to state and local agencies [see Civ. Code § 1798.3(c); Gov. Code § 6252; for discussion of the Public Records Act, see Ch. 470C, Public Records Act]. Thus, there is no overlap or conflict between any of the federal and state statutory schemes. However, the provisions of 5 U.S.C.S. § 552 and of California’s Information Practices Act are often parallel. However, differences between the statutory schemes do occur, particularly among provisions dealing with remedies and with agency procedures.

37-429 California Forms of Pleading and Practice–Annotated § 429.61

A good source for research on the background and procedures under the state act is California Forms of Pleading & Practice, Chapter 470C – “Public Records Act” available in hard copy and digital form at Alameda County Law Library.

 

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