Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis
Released: 2016-04-21T00:00:00

Background

The Freedom of Information Act (FOIA), originally enacted in 1966, provides the public presumed access to federal government information (5 U.S.C. §552). This access is available to any person, regardless of citizenship, and does not require justification on the part of the requestor. This presumptive right to access is limited only when the requested information falls within the scope of nine statutory exemptions, which are established by law:

1. Information properly classified for national defense or foreign policy purposes as secret under criteria established by an executive order; 2. Information relating solely to agency internal personnel rules and practices; 3. Data specifically exempted from disclosure by a statute other than FOIA if that statute requires that the data be withheld from the public in such a manner as to leave no discretion on the issue; establishes particular criteria for withholding information or refers to particular types of matters to be withheld; or specifically cites to this exemption (if the statute is enacted after October 28, 2009, the date of enactment of the OPEN FOIA Act of 2009); 4. Trade secrets and commercial or financial information obtained from a person that is privileged or confidential; 5. Inter- or intra-agency memoranda or letters that would not be available by law except to an agency in litigation; 6. Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy; 7. Certain kinds of records compiled for law enforcement purposes; 8. Certain information relating to the regulation of financial institutions; and 9. Geological and geophysical information and data.

These exemptions are intended to prevent the disclosure of certain types of records, with examples including those related to law enforcement proceedings, personally identifiable information, or records pertaining to national security. FOIA has been subsequently amended multiple times, most recently by the OPEN FOIA Act of 2009 ( P.L. 111-83 ).

In March of 2009, Attorney General Eric Holder distributed a memorandum related to FOIA to the heads of all executive departments and agencies. The memorandum built upon a previous memorandum from President Obama, which stated that FOIA "should be administered with a clear presumption: In the face of doubt, openness prevails." To reinforce this point, the memorandum from the Attorney General instructed agencies to preemptively disclose information prior to a public request, partially disclose information in the event that some aspect of a record must be withheld, and not withhold information simply because it falls within the strict legal parameters of an exemption. Further, the memorandum stated that

The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) the disclosure is prohibited by law.

The new policy established by this memorandum is often referred to as "the presumption of openness." This guidance from the Obama Administration departed from the previous Administration's position on FOIA implementation, in which the Department of Justice stated that it would defend any decision to withhold information under a FOIA exemption if the decision had a "sound legal basis" and did not "present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

In recent years, some Members of Congress have expressed interest in further amending FOIA to address both the presumption of openness and other issues, especially the electronic accessibility of agency records. During the 113 th and 114 th Congresses, legislation to amend FOIA was considered in both the House and the Senate. In both chambers, the currently proposed FOIA amendments address many of the same issues, often with similar language. The bills, however, also contain substantive differences. This report provides an overview of two FOIA bills in the 114 th Congress, S. 337 and H.R. 653 , and provides analysis of certain FOIA-related provisions within each.

While the legislation proposed in both the House and Senate seeks to address many of the same aspects of FOIA—often through very similar language—there are substantive differences between the bills. For example, while H.R. 653 , as referred in the Senate, would authorize inspectors general to review agencies' FOIA compliance and potentially recommend adverse action, the Senate bill does not. Furthermore, the House legislation, as referred in the Senate, would limit the scope of Exemption 5, preventing the withholding of "opinions that are controlling interpretations of law," "final reports or memoranda created by an entity other than the agency ... [that are] used to make a final policy decision," and "guidance documents used by the agency to respond to the public." S. 337 has no similar articulation of specific information outside of the scope of Exemption 5.

Additionally, H.R. 653 , as referred in the Senate, includes provisions that prescribe a particular process a federal agency is to follow when it is required to contact another agency or a nongovernmental entity to determine whether to release a requested record. H.R. 653 also contains provisions requiring annual training for employees on their FOIA-related responsibilities. S. 337 , as amended, does not contain the new process or the training requirement provisions.

In some areas, the amendments to the House and Senate bills made the bills more similar. For example, an amendment to H.R. 653 brought the process for determining FOIA-related search or duplication fees assessed after statutory deadlines have passed more in line with the provisions in S. 337 . As amended, both bills seek to place more requirements and standards on federal agencies—including a 10-day extension for providing records in particular cases, and a notice requirement for agencies to tell requesters when such particular circumstances apply.

Comparison of Legislation in the 114th Congress

Senator John Cornyn introduced the FOIA Improvement Act of 2015 ( S. 337 ) on February 2, 2015, and the Judiciary Committee reported the bill on February 9, 2015. This legislation was primarily built on similar legislation from the 113 th Congress ( S. 2520 ), which is discussed in greater detail below. In the House, Representative Darrell E. Issa introduced the FOIA Act ( H.R. 653 ) on February 2, 2015, which was referred to the Committee on Oversight and Government Reform. This bill is based in large part on H.R. 1211 , proposed in the 113 th Congress. Both S. 337 and H.R. 653 address many of the same topics, with important similarities and differences in their approaches. Since their introductions, both bills have been amended, including S. 337 having its title amended to reflect the date change to 2016.

On January 11, 2016, H.R. 653 was passed on a motion to suspend the rules and pass the bill. On January 12, 2016, the bill was received in the Senate and referred to the Senate Committee on the Judiciary. On March 15, 2016, S. 337 passed the Senate by unanimous consent. Since March 16, 2016, the bill has been held at the desk in the House. No further action has been taken on either bill.

Table 1 below provides a side-by-side comparison of S. 337 and H.R. 653 , using the version of S. 337 passed by the Senate and the version of H.R. 653 that was referred to the Senate's Committee on the Judiciary. In most cases, footnotes indicate amendments made to the bill from its introduced version. When applicable, the footnote includes current FOIA requirements and practices, providing context to the amending language.

The substantive components of the bills have been grouped into four categories:

1. Presumption of Openness: Provisions related to the overall standards by which agencies make determinations regarding the withholding or disclosure of information. 2. FOIA Administration and Exemption Use: Provisions that would alter the process or policy by which agencies administer FOIA, manage appeals, or disclose records. 3. Oversight and Reporting: Provisions regarding the role of oversight entities, including Congress and the Government Accountability Office (GAO), and new reporting requirements put in place by the legislation. 4. New Roles and Responsibilities: Provisions amending or clarifying the functions of the Office of Government Information Services (OGIS), a component of the National Archives and Records Administration (NARA), or the Chief FOIA Officer designated at each agency.

Analysis of Selected Policy Implications

As noted above, H.R. 653 and S. 337 have some similar and identical provisions, while there are other components of each bill that are unique. Below some of the policy issues embedded in the bills are discussed and analyzed in greater detail to provide context to the legislative debate.

Presidential Discretion

The amendments to FOIA outlined above present a number of distinct issues or questions for FOIA moving forward. Both S. 337 and H.R. 653 , since their introduction, have sought to make a number of changes to the role of the Administration in FOIA implementation. Both bills, for example, would codify the current standard for information disclosure set in place by the Obama Administration—or the "presumption of openness." While this codification should not affect current agency practices, it may limit the discretion available to future Presidents to make changes in the overall level of openness provided under FOIA. For instance, as noted earlier in this report, the previous DOJ standard during the Bush Administration did not include language addressing partial disclosures or recommending discretionary release of information where an exemption could technically be applied.

Additionally, both the House and Senate legislation would provide the OGIS the authority to report directly to Congress and provide legislative recommendations without review, comment, or approval from other executive branch agencies—including the National Archives and Records Administration, the Department of Justice, or the Office of Management and Budget. This direct reporting mechanism, which is included in statute for certain independent agencies, may arguably limit presidential authority over agency recommendations.

The Use of Exemption 5

Both bills under consideration in the 114 th Congress would prohibit an agency from applying Exemption 5 of FOIA to any record that is more than 25 years old. Pursuant to 44 U.S.C. §2107(a)(2), after 30 years, records of "historical or other value" are to be transferred to NARA for permanent preservation. According to a NARA bulletin discussing legal transfer of permanent records, NARA does not apply Exemption 5 to the permanent records it accepts from agencies, even if they are transferred less than 30 years. Records transferred to NARA for permanent preservation become NARA's legal custody, and NARA generally "does not consult with agencies regarding the release" of any records it accepts for permanent retention, provided the records are unclassified. The amendments to Exemption 5 proposed by both S. 337 and H.R. 653 , therefore, are likely to apply to very few records—specifically records that remain in agency custody for 25 or more years. The volume and substance of non-permanent records that remain in agency custody for more than 25 years is unclear.

H.R. 653 , as referred in the Senate, goes further than S. 337 , as passed by the Senate, removing an agency's ability to apply Exemption 5 to "opinions that are controlling interpretations of law," "final reports or memoranda created by an entity other than the agency ... [that are] used to make a final policy decision," and "guidance documents used by the agency to respond to the public." In these cases, it appears that Exemption 5 could likely no longer be applied to records in cases where a final agency interpretation of law or determination of policy is made. Such action could make many federal records available to the public years prior to when they otherwise might have been released—making executive branch agency decision making and deliberations more transparent and publicly accessible. The provision, however, could also make federal employees involved in these deliberations wary of speaking candidly about concerns or alternative options. If a federal employee understands that deliberative records could be released as soon as a policy determination is made, he or she may be fearful of expressing unpopular opinions or potential outcomes that could prompt public attention or anger.

Creation of an Interagency Management Council

Since their introductions, both H.R. 653 and S. 337 have sought to establish a Chief FOIA Officers Council, comprised entirely of federal employees and headed by the Directors of DOJ's Office of Information Policy and OGIS. This council would be similar to others established by law. For example, the Office of Executive Councils at the General Services Administration lists five interagency management councils and one board:

the Chief Acquisition Officers Council (CAOC), the Chief Financial Officers Council (CFOC), the Chief Information Officers Council (CIOC), the Performance Improvement Council (PIC), the President's Management Council (PMC), and the President's Management Advisory Board (PMAB).

All of these councils, as well as the potential Chief FOIA Officers Council that would be established by these bills, are restricted solely to federal employees. Currently, however, a FOIA Advisory Committee comprised of both federal and private members is focused on many of the issues that would be under the purview of the Chief FOIA Officers Council established by these bills. These councils could be complementary, or could at times appear duplicative. The Director of OIP and the Director of OGIS would sit on both the committee and the council. These two officials, therefore, could play a role in ensuring a unique role for each entity.

Assessment of Search and Duplication Fees

Both S. 337 , as passed by the Senate, and H.R. 653 , as referred in the Senate, could create barriers to agencies seeking to charge search and duplication fees beyond a certain statutory timeline. Agency administration of fees has been a subject of considerable debate in recent years, receiving attention from the FOIA Advisory Committee, which established a Fees Subcommittee to address the issue. During a meeting on December 3, 2014, this subcommittee reviewed fees assessed by other countries for comparable requests and considered the possibility of eliminating FOIA fees for all but commercial requestors. In addition, this group discussed the impact of such a change on the small number of requestors that account for a large percentage of agency requests, referred to as "vexatious" requestors. While both S. 337 and H.R. 653 address fee assessments for requests in which an agency has missed a deadline, they do not exempt entire classes of requestors from fees or provide any mechanism for managing "vexatious" requestors.

Amendments added to H.R. 653 , as referred in the Senate, would require executive branch agencies to include "a detailed explanation" of the FOIA fees they would assess a requester. Pursuant to H.R. 653 §2(j), as amended, federal agencies would be required to provide a requester the actual or estimated number of

records duplicated; hours of searching; files searched; records searched; custodians searched; records reviewed; and hours of review.

Additionally, executive branch agencies would have to link the costs for each of these categories to the agency's schedule of FOIA fees. These provisions appear to address congressional and public concerns that some agencies were quoting requesters unnecessarily large FOIA fees to administer requests.

Action in the 113th Congress

The legislation currently being considered by the 114 th Congress is based in substantial part on bills that were advanced in the 113 th Congress. In the Senate, the FOIA Improvement Act of 2014 ( S. 2520 ) was introduced by Senator Leahy on June 24, 2014. This legislation was reported by the Judiciary Committee on November 20, 2014, and passed the Senate by Unanimous Consent on December 8, 2014. This legislation was nearly identical to the FOIA Improvement Act of 2015, introduced in the 114 th Congress.

In the House, the FOIA Act ( H.R. 1211 ) was introduced by Representative Darrell Issa on March 15, 2013. Also in March of 2013, the House Oversight and Government Reform Committee held a hearing entitled, "Addressing Transparency in the Federal Bureaucracy: Moving Toward a More Open Government." During this hearing, Members expressed their support for the "presumption of openness" established by the President and asked questions of those who provided testimony on many of the issues that were addressed by the FOIA Act, including a single portal for FOIA requests government-wide and a more independent role for OGIS in FOIA implementation. The FOIA Act was reported by the House Oversight and Government Reform Committee on July 16, 2013, and passed the full House unanimously on February 25, 2014, by a vote of 410-0.

This legislation differed from H.R. 653 in two substantive ways. First, H.R. 1211 did not include any provisions altering the use of Exemption 5. Second, Section 3 of H.R. 1211 would have required OMB to establish a three-year pilot program to review the centralized portal for requests. This review would have required OMB to select agencies with differing levels of FOIA request traffic, assess the benefits of the centralized portal, and provide a report to Congress on the success of the pilot. The legislation currently being considered by the 114 th Congress includes the creation of a consolidated portal, but no pilot program for review. In regard to both the use of Exemption 5 and the consolidated portal, H.R. 653 is closer to its Senate counterpart than H.R. 1211 was during the 113 th Congress.