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President Obama signs the FOIA Improvement Act of 2016 on June 30, 2016
 

President Obama Signs Freedom of Information Act Improvements Into Law


Law Includes Presumption of Disclosure; Deliberative Process Sunset

Bipartisan Bill Fixes Problems Identified by Archive Audits

 

Posted June 30, 2016

Edited by Tom Blanton, Nate Jones, and Lauren Harper

For more information, contact Nate Jones, 202.994.7000 or nsarchiv@gwu.edu


 

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Text of S. 337 - The FOIA Improvement Act of 2016

At 4:00 PM today President Barack Obama signed the FOIA Improvement Act of 2016 (S. 337) into law.

The bipartisan, bicameral bill – introduced by Senators John Cornyn, Chuck Grassley, and Patrick Leahy, and supported by Representatives Jason Chaffetz and Elijah Cummings in the House – will improve FOIA in several meaningful ways and reflects many of the findings of the National Security Archive’s FOIA audits and litigation.

The legislation mandates a 25-year sunset for the “wildly misused” FOIA exemption (b)(5), an exemption that currently has no time limit and is often called the “withhold it because you want to” exemption. The CIA recently successfully hid a draft history of its 53-year-old Bay of Pigs invasion by invoking an overly-broad interpretation of the exemption. Thanks to President Obama and FOIA lions in the Senate and the House, the new FOIA bill will curtail such senseless secrecy.

Agencies are now required to update their FOIA regulations within 180 days after the passage of the bill. A National Security Archive audit shows that too many federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.

Today’s signing also codifies the presumption of openness. Archive audits going back to 2009 show that most federal agencies have continued to ignore President Obama’s “presumption of disclosure” guidance that he issued on his first day in office. The new bill codifies this presumption, mirrors the Obama administration’s and the Department of Justice’s (non binding) instructions on FOIA, thereby requiring that records be released unless there is a foreseeable harm or legal requirement to withhold them.

The law will also improve public digital access to released records, and strengthen and increase the independence of the FOIA Ombuds Office – the Office of Government Information Services (OGIS).

But the bill did not fulfill all of the public's openness asks. It does not include a public interest balancing test to force the release of information which can technically be withheld under the law; it also does not establish a government commission or mechanism which can overturn bad agency FOIA decisions.

"This is an important improvement to the US Freedom of Information Act," said Archive director Tom Blanton, "but there are several large leaps the US law still needs to make to catch up with international Freedom of Information norms and standards."

The signing of today’s legislation comes just before the law – signed begrudgingly by LBJ on July 4, 1966 – turns 50.

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