Sunshine Reform on the Horizon

public records3Earlier this month, a pair of bipartisan bills were introduced in Congress to provide greater access to federal agency records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Both the FOIA Improvement Act (S. 337) and the FOIA Oversight and Implementation Act of 2015 (H.R. 653) would (1) codify the so-called "presumption of openness" policy of the Obama Administration, (2) limit the applicability of the FOIA exemption that protects certain privileged records – including records that reflect an agency's deliberative process – from disclosure, (3) promote electronic access to agency records, (4) limit the use of search and duplication fees, and (5) strengthen the authority of the Office of Government Information Services ("OGIS") and each agency's Chief FOIA Officer. If enacted, these measures would constitute the most significant FOIA reforms in decades.

Let's look at what the bills actually propose. The "presumption of openness" is somewhat of a misnomer, since FOIA already requires federal agencies to "disclose agency records to any person under § 552(a), unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b)." U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 150-151, 109 S. Ct. 2841 (1989).   Under the existing statute, the "strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." U.S. Dept. of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541 (1991). Instead of altering that presumption, the "presumption of openness" would narrow the applicability of FOIA's exemptions by allowing agencies to withhold information under an exemption only when (1) an agency reasonably foresees that disclosure would harm an interest protected by an exemption, or (2) disclosure is otherwise prohibited by law. In other words, an agency would be unable to rely solely on the fact that a record meets the definition of an exemption to withhold a record; the agency also would need to assess any harm caused by disclosure. Whether this reform would actually decrease the use of FOIA exemptions is far from certain. Although the Obama Administration voluntarily adopted the "presumption of openness" in 2009, it substantially increased the government's reliance on FOIA exemptions at the same time.

In another attempt to rein in the use of exemptions, each bill would narrow the scope of FOIA's Exemption 5, which protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. § 552(b)(5). Courts have interpreted this exemption to "exempt those documents * * * that are normally privileged in the civil discovery context," NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975), including documents protected by the broad "deliberative process privilege," Judicial Watch, Inc. v. U.S. Dept. of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004). That privilege protects "confidential intra-agency advisory opinions and materials reflecting deliberative or policy-making processes." Id. (internal quotation marks and citation omitted). Each bill would impose a 25-year sunset on the use of Exemption 5. In addition, the House bill would clarify that the exemption does not cover "records that embody the working law, effective policy, or the final decision of the agency."

Looking to other provisions in the legislation, each bill would promote electronic access to agency records by (1) requiring agencies to maintain certain records in an electronic format, including records that have been requested at least three times, and (2) creating a single website for requesting records from all federal agencies. The bills also would limit the use of search and duplication fees. The Senate version provides that agencies would not be able to impose such fees when they fail to meet certain time requirements, unless a request would require the production of more than 50,000 pages. The House version would allow agencies to charge such fees after failing to meet certain time requirements, but only upon providing written notice of the circumstances justifying those fees. Finally, the bills would strengthen OGIS and each agency's Chief FOIA Officer by requiring them to consider and formulate policies that promote the disclosure of agency records.

Although nearly identical bills passed the House and Senate last year with widespread support, they died when Congress adjourned before the bills were reconciled. However, given early, swift moves in both chambers to revive the legislation, the prospect of significant FOIA reforms in the near future looks promising.

About The Author

Christopher Hollon | Faruki Attorney