Congress Gives FOIA a Modest but Important Update For Its 50th Birthday: 2016 in Review

Year after year, federal agencies worked behind the scenes to thwart any attempt to reform the Freedom of Information Act (FOIA). In 2016, Congress finally came through and successfully amended the 50-year-old transparency statute with the goal of improving our ability to oversee our government.

For FOIA’s golden anniversary, EFF and other transparency advocates were hoping for a comprehensive set of reforms (our wishlist is here). Although what Congress ultimately passed wasn’t half as robust, the FOIA Improvement Act of 2016 represents some of the most pronounced changes to the law in roughly a decade.

The biggest change: “the presumption of disclosure.”

FOIA now explicitly limits officials’ discretion to withhold records by requiring agencies to disclose them by default, with a couple of exceptions. The agency can hold back if it can point to a law other than FOIA that prohibits disclosure. The agency can also withhold the records if it can articulate exactly how disclosure would harm a specific interest protected by FOIA’s exemptions, such as an individual’s private medical records or classified military files.

EFF is cautiously optimistic that the presumption of disclosure rule will lead to greater transparency.

Other features of the reform bill:

• The All-in-One FOIA Portal. The law mandates that the federal government create a central online portal that will allow anyone to file a FOIA request with any agency.
• No More Outdated Regs. The law also requires all federal agencies to update their FOIA regulations before the end of 2016 to reflect the current law. This was a small but essential requirement, as many agencies’ regulations were woefully out of date, ignoring changes to FOIA passed by Congress from as far back as 2007.
• The 25-Year “Deliberative Process” Clock. The law now includes a 25-year limit on agencies’ claims that records would disclose internal decision-making, in what is known as the deliberative process privilege, and required agencies to give requesters more time to appeal denied requests.

The FOIA reforms have already had an impact. One of EFF’s allies, the National Security Archive, had been fighting in court for years to disclose a volume of the CIA’s Bay of Pigs invasion history. The CIA had long claimed that the document could not be released on grounds that it would reveal internal decision-making, i.e. deliberative process. After the law passed, the CIA reversed course and released the document to the Archive. You can read the newly released history here.

We’d like to wish a Very Sunshiny New Year to Sens. John Cornyn (R-TX) and Patrick Leahy (D-VT) and Rep. Jason Chaffetz (R-UT) for getting the bill to President Obama’s desk and fixing parts of our nation’s transparency law. But we’ll be clinking our champagne flutes to the coalition who worked with us all year, which included: Project On Government Oversight, National Security Archive, Sunshine in Government Initiative, Reporters Committee for Freedom of the Press, American Society of News Editors, ACLU, and, of course, the Sunlight Foundation.

And to the incoming agency heads, we’ll FOIA you in January.

This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2016.