Issa & Cummings Unveil FOIA Oversight and Implementation Act

WASHINGTON – Today, House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., and Ranking Member Elijah Cummings, D-Md., unveiled a discussion draft of Freedom of Information Act Reform legislation.
 
“Requests through the Freedom of Information Act remain the principal vehicle through which the American people can access information generated by their government,” said Issa. “The draft bill is designed to strengthen transparency by ensuring that legislative and executive action to improve FOIA over the past two decades is fully implemented by federal agencies.”
 
“This bill strengthens FOIA, our most important open government law, and makes clear that the government should operate with a presumption of openness and not one of secrecy,” said Cummings.
 
A draft of the FOIA Oversight and Implementation Act of 2013 (FOIA Act of 2013) is  available here. A summary of the discussion draft is also enclosed below.

(Updated to reflect the bill as introduced.)

The FOIA Oversight and Implementation Act of 2013 
 
Establishes Presumption of Openness
The bill would enact a policy in Attorney General Holder’s 2009 memorandum on FOIA to require agencies to process FOIA requests with a presumption of openness.  Under this act, agencies may only withhold information if the disclosure of such records could cause foreseeable harm.  It places the burden on agencies to demonstrate why information may be withheld, instead of on the public to justify release. 
 
Requires Agencies To Post Frequently Requested Information
Agencies will post all releasable information requested three or more times online in a publicly accessible format.  Agencies shall also review their systems of records and post releasable information online if it is likely to be in the public interest. 
 
Agency annual FOIA reports will require agencies to report how many records it made available proactively.  All raw data in agency FOIA reports will be available online in an accessible and fully useable format.
 
Establishes Single Portal for FOIA Requesters
The act will establish a pilot program to review FOIAonline, the public portal that allows requesters to submit and review requests for multiple agencies at a single location.  No later than one year after enactment, OMB shall establish a single access site (such as FOIAonline) that will allow requesters to submit requests and review the status of their requests at a single location.
 
Strengthens the FOIA Ombudsman (Office of Government Information Service)
The Office of Government Information Service (OGIS) will have increased independence, and shall report directly to Congress without interagency review.  It will review agency compliance with all aspects of FOIA, and report to Congress its recommendations for policy changes.  All reports shall be made publicly available online. 
 
OGIS will hold public meetings at least once a year to allow interested persons to submit written or oral statements on FOIA and OGIS’s reviews of FOIA compliance.
 
Strengthens Oversight and Review of FOIA Compliance
OGIS and the agency Chief FOIA Officers shall be responsible for reviewing FOIA compliance regularly.  These reviews shall include review of fee assessment and waivers, backlogs, overuse of exemptions, and other problems with FOIA.  Agencies will also be responsible for reporting more information on FOIA including the number of times it posted records proactively, engaged in dispute resolution, and invoked law enforcement exclusions.
 
Strengthens Dispute Resolution
The act will allow requesters to have 90 days to file an appeal under FOIA (previously undefined), as well as require agencies to inform requesters of their right to seek mediation services and dispute resolution from both OGIS and the agency’s Chief FOIA Officer.  Agencies will also have to report the number of times it engaged in dispute resolution and update their regulations to provide direction to agencies on mediation services. 
 
Mandates FOIA Regulations Updates
Each agency shall update its FOIA regulations within 180 days of enactment.  The regulations shall include procedures on dispute resolution and working with OGIS.  OGIS will review whether agencies comply with this, and if agencies fail to update their regulations they will have to report to Congress on their failure to do so and will be subject to a review of their FOIA compliance by their Office of Inspector General. 
 
Establishes Chief FOIA Officer Council
A Chief FOIA Officer Council, modeled after the CIO Council, shall be run jointly by OGIS and DOJ’s Office of Information Policy as joint vice-chairmen.  All agency Chief FOIA Officers shall be members of the Council.  The Council will meet regularly to review FOIA compliance and discuss improvements.  Records of the meetings shall be publicly available, and all meetings shall be noticed in the Federal Register beforehand.  No less than once a year, the Council shall have a public meeting where interested persons may submit statements in writing or in person.