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Obama just made it much easier for the public to access government records

After nearly a decade of attempts to increase transparency, the FOIA Improvement Act will codify Obama's dictum that the government should be more open.

by Jason Leopold
Jun 30 2016, 8:10pm

Imagen vía Getty Images

Nearly a half-century to the day after President Lyndon B. Johnson reluctantly signed the Freedom of Information Act (FOIA) into law, granting the public the right to access federal government records, President Barack Obama signed into law a historic FOIA reform bill that aims to make it easier for the public to file FOIA requests and obtain government documents.

This means that Obama will leave office ensuring that the federal government is, in theory, the most transparent it has ever been when Hillary Clinton or Donald Trump is sworn into office — both of whom have proven hostile to transparency. And by signing the FOIA reform bill into law, Obama can continue to boast that he had the most transparent administration in history even though his administration's record on openness over the past seven years has been horrendous.

In remarks at the Oval Office before he signed the bill, Obama acknowledged that the federal government has received a record number of FOIA requests and responses by government agencies has been painfully slow.

"Hopefully this is going to help and be an important initiative for us to continue on the reform path," the president said.

In addition to the signing of the bill, the White House unveiled a number of new initiatives the administration intends to undertake over the next six months to further government transparency, including the establishment of a Chief FOIA Officers Council whose first meeting will be held July 22.

"The President is tasking the Chief FOIA Officers Council to identify and address the biggest difficulties that exist in administering FOIA across government," the White House fact sheet said.

One of the other measures, "a release to one is a release to all," follows a July 2015 Department of Justice Office of Information Policy (OIP) pilot program, the results of which were released Thursday, that saw about seven government agencies proactively post documents online after turning records over to requesters who sought them under the FOIA. OIP is the office within the Department of Justice that is supposed to ensure all government agencies comply with the FOIA.

"This concept would ensure that all citizens — not just those making a request — have access to information released under FOIA," the White House fact sheet says about the implementation of the "release to all" policy. "The Chief FOIA Officers Council will examine issues critical to this policy's implementation, including assessing the impact on investigative journalism efforts, as well as how best to address technological and resource challenges."

OIP's report highlighting the results of the pilot program noted that "all of the substantive comments" about it were lodged by journalists.

"In addition to the feedback OIP received directly, several journalists wrote about the pilot and voiced their potential concerns with the adoption of this policy," the report said. "The thrust of many of the journalists' concerns, although not always exactly the same, was an unease that posting the records requested by journalists without giving them any lead time with sole access to the records, could take away their 'scoop' or 'exclusive' story. Additionally, there were concerns that routine posting of FOIA- processed records would act as a disincentive for journalists to use the FOIA given that they often invest considerable time and resources into building a story and those efforts would be impacted by loss of the ability to be the first with access to the requested records. At the same time, there were others in the community of journalists who applauded the idea of agencies posting all FOIA responses."

[Full disclosure: I registered concerns with OIP directly and was quoted in news reports about the "release to all" pilot program. I asked that OIP consider granting me at least a week to work with documents I requested before they are publicly posted. VICE News already embeds all government documents we obtain via the FOIA in our published reports.]

Obama called upon the FOIA council to work with the Office of Management and Budget to come with guidance by January 1, 2017 on assisting agencies with the implementation of the "release to all" policy.

Democratic Senator Patrick Leahy, one of the longtime champions of government transparency who introduced the FOIA Improvement Act two years ago with Republican Senators Chuck Grassley and John Cornyn, said in a statement Thursday that updating FOIA for the digital age will result in the disclosure of more government information than ever before "in a format familiar and accessible to the American people."

"We worked hard to build a broad, bipartisan coalition in support of our legislation which twice passed the Senate unanimously," he said. "This year, finally, the House passed our bill and now it is the law of the land. What makes FOIA special is that it empowers anyone to request and obtain records from the Federal government, unless those records fall under nine narrow exemptions. This is a hallmark of FOIA cherished by journalists, watchdogs, and interested citizens alike. The FOIA Improvement Act brings the FOIA process, which can be long and arduous, even closer to the people."

In a statement, Cornyn said, "One of our country's hallmark values is a commitment to open and transparent government, and today is an important step towards ensuring the American people can hold their government accountable."

The House passed the Senate's version of the FOIA Improvement Act earlier this month — a rare piece of bipartisan legislation backed by Representatives Darrell Issa, Jason Chaffetz and Elijah Cummings — nearly a decade after several failed attempts by Congress to overhaul the FOIA amid interference by the Department of Justice, the Federal Trade Commission, and the Securities and Exchange Commission, as exclusively reported by VICE News in March.

"From day one, my biggest priority in Congress has been to make government more open and responsive to the people it's supposed to serve. I'm proud to finally see these bipartisan reforms, which I've been fighting to implement for years, become a reality," Issa said in a statement.

One of the key elements of the bill is that it codifies into law the memorandum Obama issued on his first day in office to the heads of executive departments and federal government agencies, directing them to administer the FOIA with a presumption of openness. Although government agencies rarely adhered to the directive, now that that it is the law of the land agencies must release records unless "the agency reasonably foresees that disclosure would harm an interest protected by an exemption" or "disclosure is prohibited by law."

"This bill marks an important milestone; it significantly advances the public's right to know, and includes provisions that the government openness and accountability community has been promoting for the last decade," said Patrice McDermott, executive director of OpenTheGovernment.org, which advocated strongly for reforms. "We can take a moment to celebrate FOIA's 50th anniversary with a stronger and better statute that enhances the public's ability to hold officials accountable. There is still work to be done, though, especially in terms of ensuring strong FOIA implementation in the next Administration and Congress."

The bill radically overhauls one of the FOIA's most abused and overused exemptions: B5, referred to by open government advocates as the "withhold it because you can" exemption. Currently, when government agencies cite B5, which applies to internal deliberations and attorney-client privileged communications, government agencies can withhold records under that exemption forever. Under the FOIA Improvement Act, however, government agencies can withhold records pertaining to internal deliberations for only 25 years. Attorney-client privilege records, which also fall under B5, will not be part of the reform.

The changes will likely result in a flood of requests for historical documents being filed with dozens of government agencies. Nate Jones, the director of the FOIA project at George Washington University's National Security Archive, spent years urging members of Congress to enact reforms to the FOIA. he told VICE News that his group will immediately refile FOIA requests with the CIA seeking documents that he was previously denied under B5.

"Tomorrow the National Security Archive will refile its request for CIA's Bay of Pigs history, which a federal court previously allowed the CIA to hide for perpetuity using Exemption Five [B5], and that the CIA and Department of Justice argued 'could confuse the public' if released," Jones said. "We've also identified more than a hundred other historically important documents, previously hidden by Exemption Five, that we can now win the release of using FOIA."

Jones said Obama's signing of the FOIA Improvement Act "is a huge step that ensures more people will have access to more documents more quickly."

"While the White House has been a strong champion on many other Open Government initiatives, President Obama has unfortunately not lived up to his strong Day One pronouncements on the Freedom of Information Act and the public's right to records," Jones said. "Hopefully his signing of this law will reacquaint him with the values he championed on his first full day in office and spur him to burnish his FOIA legacy during his last months as President."

Related: Read more at 'Primary Sources,' VICE News' FOIA blog

The bill directs the Office of Management and Budget to establish a single access website, FOIA.gov, to allow requesters to submit FOIA requests and track the status of their requests. The White House announced today that the Department of Justice will immediately begin to work with the Office of Management and Budget, the Environmental Protection Agency and and other federal agencies to launch the web portal in 2017.

The bill also grants more oversight powers to the Office of Government Information Services (OGIS), also known as the FOIA Ombudsman, to ensure agencies are complying with the law; requires the proactive disclosure of government records if information has been requested three or more times; the bill says that agencies are prohibited from charging requesters search fees if agencies fail to respond to requesters within 20 days and 30 days if there are "unusual circumstances" and sets a government-wide minimum of 90 days for requesters to file FOIA appeals.

Government agencies are required to issue new regulations within 180 days explaining how they intend to implement the new reforms to the FOIA. The bill does not contain any additional funding to assist government agencies with carrying out the reforms.

Follow Jason Leopold on Twitter: @JasonLeopold