Date: December 5, 2014
House Passes H.R. 1211,
the FOIA Oversight and Implementation Act of 2014
On February 25, 2014, H.R. 1211, the FOIA Oversight and Implementation Act of 2014, passed the House by a vote of 410-0. The bill would make a number of changes to the Freedom of Information Act (FOIA) (5 U.S.C. 552) that would affect all Federal agencies.
H.R. 1211 includes the following provisions of interest to SSA. Unless otherwise stated, the effective dates of many of the provisions would flow from regulations that each agency must issue, no later than 180 days after enactment.
Availability of Electronic Records
- Would require Federal agencies (hereafter simply “agencies”) to make the records that current law requires them to “make available for public inspection and copying” available “in an electronic, publicly accessible format” instead.1
- Would require agencies to include in this electronic format any record that has been requested at least three times.
- Would require agencies to make the indexes providing identifying information as to any matter issued, adopted, or promulgated after July 4, 1967, that current law requires be “available for public inspection and copying” be available “in an electronic, publicly accessible format” instead.
Fee Collection Requirements
- Would amend current law to require agencies that charge search and duplication fees (even when they have not met the statutory time limits for responding to FOIA requests) to provide written notice to the requester of the circumstances that justifies the fees. If an agency were to fail to provide such written justification, it could not charge the fees.
- Would require agencies, when responding to FOIA requests, to notify the requester:
- In all cases, of his or her right to seek assistance from the FOIA Public Liaison of the agency;
- In cases of an adverse determination, the right to appeal to the head of the agency within 90 days2; and,
- In cases of appeal, the right to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services (OGIS).
FOIA Tracking System
- Would amend current law requirements for tracking FOIA requests so that:
- All requests—not just those that will take longer than 10 days to process—must be assigned a tracking number; and,
- The telephone or Internet service through which requesters may inquire about the status of their requests must be automated.
- Would require agencies to review, and make available in an electronic, publicly accessible format, all records that would contribute significantly to public understanding of the operations and activities of government. Agencies could segregate or redact from these records any information that may be withheld from disclosure under FOIA exemptions.
- Would require agencies to establish procedures for identifying categories of records that may be disclosed regularly, and for posting these records in an electronic, publicly accessible format.
- Would provide that agencies could not withhold information under FOIA unless the agency reasonably foresees a specific identifiable harm to an interest protected by a FOIA exemption or the disclosure is prohibited by law.
Agency Reporting Requirements
- Would make changes to the annual FOIA reporting requirements to require agencies to:
- Submit the report to the Director of OGIS, in addition to the Attorney General;
- Include in the report the number of times the agency denied a request for records involving a law enforcement exclusion, the number of times an agency engaged in dispute resolution, the number of records that were made available for public inspection in an electronic format under subsection (a)(2) of FOIA3, and the number of times an agency assessed a search or duplication fee and did not comply with the time limit set in the law; and,
- Make the report available in an electronic, publicly accessible format without charge, license or registration requirement, in an aggregated searchable format, and in a format that may be downloaded in bulk.
Agency Reference Materials
- Would require agencies to make the reference materials or guides for requesting records that current law requires them to “make publicly available upon request” available “for public inspection in an electronic format” instead.
OGIS and GAO Reports
- Would require OGIS, not later than 1 year after enactment and every 2 years thereafter, to submit a report to Congress identifying categories of records that would be appropriate for proactive disclosure.
- Would require OGIS to submit an annual report to Congress that includes, among other things, a review of agency compliance with FOIA.
- Would require the Government Accountability Office (GAO) to conduct audits on agencies’ compliance with FOIA, as well as each agency’s use of certain FOIA exemptions.
Agency Chief FOIA Officer Responsibilities
- Would require agencies’ Chief FOIA Officers to serve as the primary agency liaison with OGIS and the Office of Information Policy within the Department of Justice.
- Would require agencies’ Chief FOIA Officers to annually review, ensure compliance with, and make recommendations to improve agency practices related to all aspects of FOIA, including agency regulations, disclosure of records, assessment of fees and waivers, timely processing, and the use of exemptions and dispute resolution services.
- Would establish a Chief FOIA Officers Council, comprising, among other members, the Chief FOIA Officers of each agency. The Council would meet regularly and its duties would include, among other things, developing recommendations for increasing compliance and efficiency with FOIA.
Issuance of Regulations
- Would require each agency, no later than 180 days after enactment, to issue regulations implementing the FOIA amendments made by this Act. These regulations must include procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS.
- Would require OGIS to report to Congress, no later than 270 days after enactment, on agencies’ compliance with issuance of such regulations.
- Would require noncompliant agencies to report to Congress, no later than 270 days after enactment, on the reason for their noncompliance. The Inspectors General of noncompliant agencies would be required to review their agencies.
- Would require the Office of Management and Budget (OMB) to ensure the existence and operation of a single website, accessible by the public at no cost, which would enable the public to submit FOIA requests, receive automated information about those requests, and file related appeals.
- Would require OMB to establish a 3-year pilot program to review the benefits of a centralized portal to receive and track FOIA requests. OMB would select no fewer than three agencies for participation in this pilot program. Selected agencies must meet certain requirements and cannot have previously participated in a centralized FOIA portal. These agencies would use the portal for a number of FOIA related activities, such as receiving requests, tracking requests, consulting with and referring requests to other agencies, and making requested records available to the public. Selected agencies would also have other responsibilities.
Inspector General Review
- Would require the Inspector General of each agency to periodically review their agency’s compliance with FOIA and make necessary recommendations.
- Would provide that withholding information in a manner inconsistent with FOIA would be the basis for disciplinary action.
Open Government Advisory Committee
- Would establish an Open Government Advisory Committee, comprised of at least nine members appointed by the Archivist, to make recommendations for improving government transparency.
No Authorization of Additional Funds
- Would provide no additional funds to carry out the requirements of this Act and would require implementation of the requirements to be made using funds otherwise authorized or appropriated.
1 This provision specifically amends subsection (a)(2) of FOIA (commonly known as the “FOIA reading room”), which requires the routine disclosure of certain agency records, such as agency options and policy statements.
2 Current law allows only 30 days for appeal filings.
3 That is, the “FOIA reading room” described in Footnote 1.