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50th Anniversary of FOIA Celebrated with Reform

Judith Kaul  /  Thursday, June 30, 2016  /  Categories: Quick Guides  /  Rate this article:
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On July 4, 2016 America celebrates the 50th Anniversary of the United States Freedom of Information Act (FOIA). Today, President Obama celebrated early by signing Freedom of Information Improvement Act of 2016 (S.337, passed on June 13, 2016) into law. President Lyndon Johnson signed the original FOIA on July 4, 1966. It was intended to “provide guidelines for the public availability of the records of Federal departments and agencies.” Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 250 (1966). In his signing statement, Johnson noted, “This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the Nation permits.” In 2006, Thomas Blanton found fault with Johnson’s signing statement, pointing out that he didn’t hold a formal ceremony, he didn't even add it to his Daily Diary and “personally removed strong openness language” from Bill Moyer’s press statement. Also, Johnson “only agreed to approve the bill after the Justice Department suggested he could use the tactic” of drafting “a signing statement that undercut the thrust of the law.” (Source: Freedom of Information at 40) Per Bill Moyers, the President was dragged “kicking and screaming” to sign it in San Antonio.  The last paragraphs of his signing statement provide some indication of his ambivalence and stressed:
I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted. I am hopeful that the needs I have mentioned can be served by a constructive approach to the wording and spirit and legislative history of this measure. I am instructing every official in this administration to cooperate to this end and to make information available to the full extent consistent with individual privacy and with the national interest.
The National Security Archive at George Washington University’s website provides links to news articles from late 2006 that that support the notion of Johnson’s change of heart on the FOIA. One example is Ted Bridis, “The U.S. President Worried About Giving Up Secrets—40 Years Ago,” Pittsburgh Post-Gazette, July 5, 2006.)

The Most Recent FOIA Amendment

S. 337, the bill that just passed, known as the FOIA Improvement Act of 2016, “mak[es] the most significant changes to the Freedom of Information Act in its 50-year history.” You can read more details about the passage in: Cheryl Bolen, “Biggest Changes in 50 Years Coming to FOIA,” 16 DIGITAL DISCOVERY & E-EVIDENCE 274 (2016). The most significant changes in the FOIA Improvement Act include:
  •  Section 2 of the act requires “disclosable records and documents be made available for public inspection in an electronic format;”
  • Requires “agencies to make available for inspection in an electronic format records that have been requested three or more times (frequently requested records);”
  • Prohibits “an agency from charging a fee for providing records if the agency misses a deadline for complying with an FOIA request unless unusual circumstances apply and more than 5,000 pages are necessary to respond to the request;”
  • Prohibits “an agency from withholding information requested under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law (presumption of openness);”
  • Limits to “ a period of 25 years or more” the FOIA exemption for agency communications to allow the disclosure of agency records;”
  • Requires “the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters;”
  • Expands “the authority and duties of the Chief FOIA Officer of each agency to require officers to serve as the primary agency liaison with OGIS and the Office of Information Policy;”
  • Establishes “a Chief FOIA Officers Council to develop recommendations for increasing compliance and efficiency in responding to FOIA requests, disseminating information about agency experiences, identifying, developing, and coordinating initiatives to increase transparency and compliance, and promoting performance measures to ensure agency compliance with FOIA requirements; and”
  •  Requires the creation of a consolidated online request portal “that allows a member of the public to submit a request for records to any agency from a single website.”
  • Section 5 specifies that “no additional funds are authorized to carry out the requirements of this bill.”
  • Per Section 6, “this bill shall take effect on its enactment date” (which the media expects to be July 4, 2016 (if not before)) and shall apply to all FOIA requests for records made after its enactment date.
“Rep. Mark Meadows (R-N.C.) said the bill would go a long way toward eliminating the “withhold-it-because-you-want-to exemption” by federal agencies and would make more information available to the public.” 16 Digital Discovery & e-Evidence 274 (Supra.) This comment gives a hint of the disfunction  the reform act is meant to remedy. Senator Patrick Leahy stated, “With today’s passage of the bipartisan FOIA Improvement Act, we have chosen to let the sunshine in.”

Would President Obama Sign the 2016 Act?

In 2011, Obama’s administration expanded efforts to support his open government efforts by “launching the Open Government Partnership at the U.N. General Assembly along with seven other heads of state. U.S. efforts with the Open Government Partnership are set forth in biennial Open Government National Action Plans that detail specific and measurable open government commitments.” See the current White House website: Open Government Initiative. (Source: “About Open Government”). But will his signing statement undercut the thrust of this act? Even from his first day in office the President has supported openness and a more transparent government. The new law updates the FOIA by codifying the “presumption of openness” begun in President Obama’s Open Government Memorandum, and his subsequent Open Government Directive(December 8, 2009). The Obama White House website includes a Transparency and Open Government website. However, just to increase the suspense for the July 4th celebration, the Freedom of the Press Foundation posted Department of Justice documents (in March 2016) that suggested this president was having a change of heart. The Foundation ironically obtained documents through FOIA requests that are said to show that the White House actually “worked aggressively behind the scenes” to undermine these very Congressional reforms. Judge for yourself at: https://news.vice.com/article/it-took-a-foia-lawsuit-to-uncover-how-the-obama-administration-killed-foia-reform. Especially since this bill received rare bi-partisan support, it is important that he signed this reform legislation and hope that his signing statement does not disrupt the goals of the law. We will post his signing statement when it is available. It is important to celebrate our country's successes.  The FOIA is one of them.  Though it requires occasional tweaking and sometimes suffers from incorrect interpretations its goal is honorable. As observed by the U.S. Supreme Court in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), the "purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption."

Selected Resources

You may read the bill as passed and track its status at: Congress.gov. You may read the Senate Committee Report, S. Rept. 114-4 114th Cong. (2015-2016). Once the Public Law Number has been assigned (which happens after the president signs the act), CWRU faculty, students and staff will soon be able track the complete background and legislative history of this bill/act through use of the Campus Libraries’ subscription to ProQuest Legislative Insight. Through this service you will be able to find any Presidential Signing Statement by President Obama, along with viewing the consolidated Congressional hearings, reports and other documents that led to the creation of this act. Through the ProQuest resources you can also find President Johnson’s signing statement via Legislative Insight by searching 89th Congress, S. 1160, PL 89-487 in Legislative Insight. Not only can we find the final version of the bills that passed we can also find all the earlier proposed legislation that led to the drafting of the version that passed both houses of Congress.

Articles and Books

Below are selected resources providing additional background information and analysis on FOIA in the United States. These are available through CWRU libraries books and resources.

Selected Articles


 Martin E. Halstuk, When is an Invasion of Privacy Unwarranted Under the FOIA? An Analysis of the Supreme Court’s “Sufficient Reason” and “Presumption of Legitimacy” Standards,” 16 U. Fla. J.L. & Pub. Pol'y 361-400 (2005).

Margaret B. Kwoka, “Deferring to Secrecy,” 54 B.C. L. Rev. 185-242 (2013).

Margaret B. Kwoka, “FOIA, INC.,” 66 Duke L. J. 1361-1438 (2016).

David S. Levine, “The Social Layer of Freedom of Information Law,” 90 N.C. L. Rev. 1687-1733 (2012).

Robert S. Litt, “U.S. Intelligence Community Surveillance One Year After President Obama’s Address,” 3 Nat’l Sec. L.J. 210 (2014-2015).

Jeannine E. Reilly & Meghna Sabharwal, “Perceptions of Transparency of Government Policymaking: A Cross-National Study,” 26 Govt. Info. Q. 148-157 (2009).

Carol Shockley, “The Federal Presentence Investigation Report: Postsentence Disclosure under the Freedom of Information Act,” 40 Admin. L. Rev. 79-119 (1988).

Laurence Tai, “Fast Fixes for FOIA,” 52 Harv. J. Legis. 455-507 (2015).

Periodical Subject Headings You Can Use to Find More Articles:


 Freedom of Information Act; Judicial Review; Law & Secrecy; Transparency in government

Selected Books

Jason Ross Arnold, Secrecy in the Sunshine Era: The Promise and Failures of U.S. Open Government Laws (2014). Law Library KF 5753 .A976 2014.

Herbert N. Foerstel, Freedom of Information and the Right to Know: The Origins and Applications of the Freedom of Information Act (1999). Law Library KF5753 .F64 1999.

P. Stephen Gidiere III, The Federal Information Manual: How the Government Collects, Manages, and Discloses Information under FOIA and Other Statutes (2006). Law Library KF 5753 .G53 2006.

Frank G. Houdek, The Freedom of Information Act: A Comprehensive Bibliography of Law Related Materials (3d ed. 1985). HeinOnline.

David M. O’Brien, The Public’s Right to Know: The Supreme Court and the First Amendment (1981). Law Library KF5753 .O24. KSL Stacks KF5753 .O24.

CWRU Libraries’ Catalog or the OhioLINK Catalog Subject Headings

Government information – United States
Freedom of information – United States
Freedom of information – United States -- Bibliography
Freedom of information – United States – Cases
Official secrets – United States
United States. Freedom of Information Act -- Bibliography

Websites

Congress Passes FOIA Reform in Time for FOIA’s 50th Anniversary (American Association of Law Libraries Blog).

Exemptions to Disclosure under FOIA: 1. National Security 2. Internal Agency Rules 3. Statutory Exemption 4. Trade Secrets 5. Internal Agency Memos 6. Personal Privacy 7. Law Enforcement Records 8. Bank Reports 9. Oil and gas well data

Reporters Committee for Freedom of the Press, Last visited, June 30, 2016.

Freedom of Information at 40, LBJ Refused Ceremony, Undercut Bill with Signing Statement, Posted July 4, 2006. Last visited, June 30, 2016.

Major U.S. Supreme Court FOIA Cases” Reporters Committee for Freedom of the Press, Last visited, June 30, 2016.
Jason Leopold, It Took a FOIA Lawsuit to UnCover How the Obama Administration Killed FOIA Reform, Posted March 9, 2016.

Vice News
website. Last visited, June 30, 2016.
White House Website: Transparency and Open Government.

July 5, 2016 Update:

A Fact Sheet was posted by the White House: Fact Sheet: New Steps Toward Ensuring Openness and Transparency in Government but so far it does not appear the President wrote a signing statement. There was also a Statement by the Press Secretary on H.R. 3209, S. 337, S. 2133, S.2328, S. 2487. The statement on S. 337 simply reports,
S. 337, the "FOIA Improvement Act of 2016," which amends the Freedom of Information Act (FOIA) by: requiring Federal agencies to make certain records available for public inspection in an electronic format; and requiring the Office of Management and Budget, in consultation with the Attorney General, to ensure the operation of an online portal that would allow FOIA requests to be submitted to any Federal agency through a single website;

Number of views (1241)      Comments (1)

1 comments on article "50th Anniversary of FOIA Celebrated with Reform"

Joe Custer

7/3/2016 9:51 AM

Excellent post. Thank you.

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