As the sun sets on the Obama presidency, let’s make sure the light shines brightly anew on the incoming administration.
In 2016, Congress passed the biggest update to the Freedom of Information Act (FOIA), the nation’s transparency law, in more than a decade. But until people start using those changes to push back on government secrecy, they are just words on a page.
So in the spirit of New Year’s resolutions, EFF hopes that you will join us in filing more FOIA requests to increase government transparency and put the new FOIA provisions to work.
EFF has long used FOIA to uncover surveillance technologies used in law enforcement and national security programs that threaten everyone’s civil liberties. Since President Obama signed the amendments into law, EFF has begun incorporating some of the law’s changes into its FOIA requests. But we need your help to make government as transparent as possible.
Below we discuss three of the biggest changes Congress made to FOIA and include suggested language that anyone can use in future FOIA requests. If you’ve never filed one before, there are a number of online resources that can teach you about the law and help you file a request.
Remind Agencies They Are Required to Presume All Records Are Open to the Public
The FOIA Improvement Act of 2016 wrote into a law a presumption of disclosure that mandates agencies disclose records unless: (1) the disclosure is prohibited by law or (2) the agency believes disclosure would violate one of FOIA’s nine exemptions.
The change was modeled after language President Obama included in a memo to all federal agencies in his first day in office that requires them all to be more transparent. Unfortunately, that memo was not legally binding and, as many FOIA requesters know, it was largely ignored by many federal agencies.
Because the presumption is now law under FOIA, requesters should not be shy about reminding agencies of their new legal obligations. Specifically, EFF recommends that requesters include the following language in their FOIA requests:
Although FOIA has always presumed that government records are open to public inspection, the FOIA Improvement Act of 2016, Pub. L. 114-185, prohibits agencies from withholding records unless (1) “disclosure is prohibited by law” or (2) “the agency reasonably foresees that disclosure would harm an interest protected by” one of FOIA's exemptions. 5 U.S.C. § 552(a)(8)(A). Thus, in addition to FOIA favoring disclosure and requiring its exemptions to be narrowly construed, Section 552(a)(8)(A) prohibits agencies from using their discretion to broadly withhold records merely because they believe an exemption could technically apply.
Call Agencies On Their Bluff to Withhold Historic Records
The FOIA Improvement Act also curtailed agencies ability to misuse an exemption that shields internal agency decision-making from disclosure, known as the deliberative process privilege, making it inapplicable to government documents created more than 25 years ago. The change is an important limitation on what transparency advocates have long called the “withhold it because you want to” exemption.
To avoid getting stonewalled by officials, EFF recommends the following language be included if your request is likely to have responsive records that are more than 25 years old.
Under the FOIA Improvement Act of 2016, agencies can no longer withhold records under the deliberative process privilege of Exemption 5 if they are more than 25 years old. Specifically, Section 552(b)(5) states that “the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.”
Don’t Let Agencies Rush Your Appeal of a FOIA Denial
An overlooked but important change included in the FOIA Improvement Act of 2016 was the requirement that agencies give requesters at least 90 days to appeal any adverse decision by an agency to withhold or redact records sought by requesters.
Repeat FOIA requesters know that although it can take federal agencies months, and sometimes years, to meaningfully respond to a request, those same agencies often force requesters to appeal any withholding within 30 days of receiving the final response.
This was one of the most frustrating aspects of FOIA, as missing the 30-day deadline would often result in the agency closing out the request, meaning the only way to challenge a decision to withhold records was to file a new request and start all over again.
Thankfully, Congress has required agencies to give requesters a minimum of 90 days to administratively appeal any decision on a FOIA request. The 90-day limit is just a floor, however, as agencies can provide even longer response deadlines as they revise their regulations.
Should an agency withhold records in response to your request and still claim that you have only 30 days to appeal that decision, we suggest adding the following language to your appeal.
Although the agency’s final response states that I have 30 days to appeal an adverse decision, the FOIA Improvement Act of 2016 requires agencies to give FOIA requesters “not less than 90 days” to appeal an adverse determination. 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). As such, Congress has superseded by statute any shorter deadline your agency has previously imposed on requesters. My appeal is thus timely under FOIA so long as it is received within 90 days of a final response. Also, please update all future correspondence with all requesters to reflect the extended deadline requesters now have to challenge your agency’s determinations, as you are currently misstating the law.
We hope that you will join EFF in 2017 in using these new provisions—and FOIA generally—to pry records from the government and to hold public officials accountable for their actions.