The Freedom of Information Act (FOIA) was enacted decades ago to enable the citizenry the opportunity to monitor governmental affairs. As FOIA precedent has held, the public is entitled to find out and know “what the government is up to.” Indeed, upon request, the government is required to provide information about its activities unless prohibited by a narrow statutory exemption or otherwise prevented by law.
Of course, statutory aspirations and actual production of information in practice are not always in harmony. There are times when government information is not produced within the timelines set forth in FOIA. Other times, information is not produced at all; for example, when the government is perceived to give too wide an interpretation on the applicability of a statutory exemption. Moreover, different administrations have different views on how open government should be when it comes to disclosing information under FOIA.
And now, toward the end of the Obama presidency, Rep. Darrell Issa (R-California) has sponsored H.R. 1211, the FOIA Act — a bill which recently passed the House and has been received in the Senate, read twice, and referred to the Committee on the Judiciary.
The bill states that its intent is “to provide greater public access to information,” among other purposes.
One of its features is to provide even greater electronic accessibility to information provided under FOIA. Under the bill, agencies would “make information public to the greatest extent possible through modern technology” while ensuring “timely disclosure of information.”
Indeed, the bill would require the Office of Management and Budget to establish a pilot program for three years to review the benefits of a centralized portal to process requests and release information under FOIA.
Furthermore, the bill seeks a “presumption of openness.” This means that an agency “may not withhold information … unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law” (emphasis added).
In addition, the bill would require agencies to review requested records “to determine whether the release of the records would be in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government.”
The bill also provides for mediation services to be made available by the Office of Government Information to help resolve FOIA disputes short of litigation.
FOIA has been amended from time to time since its original enactment. We soon will see whether the provisions set forth in this recent bill actually will become law as part of the FOIA statutory framework.
Eric Sinrod is of counsel in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at firstname.lastname@example.org with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.