Date: December 9, 2014
Senate Passes S. 2520,
the FOIA Improvement Act of 2014
On December 8, 2014, S. 2520, the FOIA Improvement Act of 2014, as amended, passed the Senate by unanimous consent. 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. The bill now moves to the House for consideration.
S. 2520 includes the following provisions of interest to SSA.
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 “for public inspection in an electronic 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 “for public inspection in an electronic format” instead.
Fee Collection Requirements
- Would clarify the limitation in current law on agencies’ authority to charge FOIA requesters search or duplication fees: an agency would be allowed to collect a fee only if it complies with the FOIA request within the statutory time limits 2 and follows the prescribed notice requirements. 3
- Would amend current law to permit agencies to charge fees for certain additional requests:
- When “unusual circumstances” apply and more than 50,000 pages are necessary to respond to the request. The agency must have provided a timely written notice to the requestor that additional time is needed to respond to the request, and have discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request; and,
- When a court has determined that “exceptional circumstances” exist, so long as the agency completes the request in the length of time specified in the court order.
- 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; and,
- In cases of an adverse determination, the right to appeal to the head of the agency within 90 days 4 and to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services (OGIS).
- Would require agencies, when negotiating with a requester for additional time or more limited scope, to notify the requester of his or her right to seek dispute resolution services from OGIS, in addition to the FOIA Public Liaison as required by current law.
- Would clarify that agencies could withhold information under FOIA only if the agency reasonably foresees a specific identifiable harm to an interest protected by a FOIA exemption or if the disclosure is prohibited by law. Agencies could not withhold information merely because it technically falls under an exemption or the disclosure could be embarrassing to the agency.
- Would amend the current FOIA exemption for “interagency or intra-agency memorandums or letters” (i.e., any drafts or documents that are part of an internal deliberative process) to require agencies to release such records if created more than 25 years before the date of request. 5
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 due to ongoing criminal investigation, and the number of records that were made available for public inspection in an electronic format under subsection (a)(2) of FOIA 6;
- Make the report available for public inspection in an electronic format; and,
- Make the raw statistical data used in the report available in a timely manner for public inspection in an electronic 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 to submit an annual report to Congress and the President that includes, among other things, the number of times each agency engaged in dispute resolution with OGIS or the FOIA Public Liaison.
- Would require the Government Accountability Office (GAO) to audit, no later than 1 year after enactment and every 2 years thereafter, 3 or more agencies’ compliance with FOIA, as well as each agency’s use of certain FOIA exemptions.
- Would require GAO to conduct a study and issue a report, not later than 1 year after enactment, on the methods, and effectiveness of such methods, that agencies use to reduce FOIA request backlogs.
Agency Chief FOIA Officer Responsibilities
- Would require agencies’ Chief FOIA Officers to offer training to agency staff on FOIA responsibilities and serve as the primary agency liaison with OGIS and the Office of Information Policy within the Department of Justice.
- Would also require the Chief FOIA Officers to annually review, and ensure compliance with, 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.
- Would require the Director of the Office of Management and Budget and the Attorney General to ensure the operation of an online portal to allow the public to submit FOIA requests to any agency via a single website. Would provide that this requirement should not be construed to alter an agency’s ability to create or maintain its own portal; however, agency portals must conform to interoperability standards established by the Director.
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. The bill does not provide a date by which these regulations must become effective.
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 The statutory limits are: 20 work days, plus 10 additional work days in cases of “unusual circumstances,” plus, in the case of “unusual circumstances,” any additional time agreed upon in consultation with the requester.
3 The stated intent of these changes is to clarify ambiguous language that allowed agencies to claim fees even when notice requirements and deadlines were not met. If read as a clarification of requirements already in the law, this language may have little effect on the agencies.
4 Current law allows only 30 days for appeal filings.
5 This exemption is commonly known as the (b)(5) exemption.
6 That is, the “FOIA reading room” described in Footnote 1.