How Congress Just Improved Transparency: FOIA Reform

June 15, 2016 | 11:07 am
Yogin Kothari
Former Contributor

Fourth of July is one of my favorite holidays. But this year, it’s extra special. This July 4th marks the 50th anniversary of the adoption of the Freedom of Information Act, also known as FOIA. The bedrock transparency law essentially allows citizens to know what their government is up to. This year, we will have even more reason to celebrate.

Earlier this week, Congress sent the FOIA Improvement Act of 2016 to the president’s desk to sign into law. The legislation marks an important step forward toward increasing access to government information.

Three vital improvements

Here are three things that the new law will do.

  1. Strengthen “presumption of openness.” This is one of the most critical pieces of the reform. Now, agencies will be required by law to err on the side of disclosure unless there is foreseeable harm or a legal requirement to withhold specific information. By putting the “presumption of openness” standard into law, federal agencies must include this in their guidelines and practice.  And, meeting the openness standard is no longer a matter left to the discretion of future administrations. The policy builds upon and solidifies what President Obama and then Attorney General Eric Holder directed the federal government to do back in 2009 (UCS advocated for this in Federal Science and the Public Good), and places the burden on agencies to justify withholding records.
  2. Strengthening the Office of Government Information Services (OGIS). A little-known agency within the federal government, the bill will increase the effectiveness and independence of OGIS and allow for it to be a strong advocate for transparency and disclosure. For example, OGIS is now required to offer mediation services for FOIA requesters and agencies and is even encouraged to issue opinions in these cases.
  3. Creation of a single website to submit FOIA requests. Currently, a FOIA portal exists, but not every agency participates. This bill would require the federal government to build an online request portal that allows the public to submit FOIA requests to any agency from a single website.

Achieving bipartisan reform 

Once signed by President Obama, the FOIA reform legislation will improve public access to government information.

Once signed into law by President Obama, the FOIA reform legislation will improve public access to government information. [Photo Credit: Got Credit]

Over the last several months, Republicans and Democrats rolled up their sleeves and worked together to strengthen our landmark open records law. They consistently met with the open government community, heard our concerns, and worked to find a path forward to finalize comprehensive reform. In January, the House passed a FOIA bill that would take important steps to increase transparency. A few months later, the Senate unanimously passed its version of FOIA reform during Sunshine Week that would do the same.

While the House and Senate versions of FOIA reform had some differences, both bills aimed to solidify open government reforms that President Obama and then Attorney General Holder committed to during the first few months of the administration, with the purpose being to establish a more effective and efficient FOIA process. In an era of rare collaboration across party lines, there was strong bipartisan support for FOIA reform in both chambers.

No doubt, there were some hiccups along the way, including the Obama administration’s effort to “scuttle” FOIA reform (ironically discovered through a FOIA request), but it is a real testament to congressional leaders, including House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-UT), Ranking Member Elijah Cummings (D-MD), Senate Judiciary Committee Chairman Charles Grassley (R-IA), Ranking Member Patrick Leahy (D-VT), Senator John Cornyn (R-TX), and their staffs, to see this reform all the way through.

As a result of their hard work and the continued pressure that the transparency community (including UCS) put on Congress and the White House, the House passed the Senate’s version of FOIA reform on Monday without any opposition.

Looking forward

The improvements mentioned above, along with other fixes, are a huge victory for everyone, though we didn’t get everything we wanted. As my colleague wrote back in March, “FOIA always will be a work in progress” and UCS will continue to advocate for policies that increase the public’s access to information. Sunshine in government benefits everyone and allows us to hold Washington accountable, whether it be to help monitor agency implementation of scientific integrity and media policies, or to ensure that the work of federal scientists isn’t being undermined or politicized.

As with any legislation, it’s one thing to sign it into law, and another to make sure it’s implemented. Under the new law, federal agencies will need to review and publish updated guidelines for disclosure. UCS and our open government partners will be monitoring agencies to ensure that they follow through quickly, clearly, and consistently in carrying forward the new requirements for transparency. We will continue our work to hold this administration and future administrations accountable to the promise of greater transparency and public access.

As my colleagues and I look forward to the president’s signing of this law, let’s take a moment to reflect on how far we’ve come, and how far we still have yet to go when it comes to open government. Be sure to follow the conversation with me on Twitter by using the hashtags #50DaysOfFOIA and #FixFOIABy50, and let’s celebrate a little extra on July 4th for 50 more years of transparency.