Despite earlier failed efforts, Republican Darrell Issa of North County and Democrat Elijah Cummings introduced legislation Monday in the House to strengthen the nation’s Freedom of Information Act (FOIA) laws.

Rep. Darrell Issa at a House meeting. Photo courtesy Issa’s office

The FOIA Oversight and Implementation Act of 2015 would establish a presumption of openness for releasing information while creating electronic accessibility for frequently released information. 

The Issa-Cummings bill also would strengthen oversight and review of FOIA compliance, as well as dispute resolution from the Office of Government Information Services.
 
“At a time when the American people’s trust in the federal government is at an all-time low, we must strengthen and refine our laws that enable transparency and openness in government,” Issa said in a statement.  

“Requests through the Freedom of Information Act remain the best tool for the American people to hold their government accountable. In this information technology driven era, it should be easier, not harder for citizens to have simpler and broader access to government information.”

In its report of the new effort, which also includes parallel legislation in the Senate, Politico noted:

The legislation encountered a flurry of last-minute resistance at the end of the last Congressional session, with a number of federal agencies raising concerns that the bill could encourage judges to release sensitive guidelines used to target enforcement actions. Then- Sen. Jay Rockefeller (D-W.Va.) blocked the bill for a time based on those concerns, but eventually relented.

It’s not clear why the measure died in the House, but some advocates believe banking interests obstructed the measure by claiming it could lead to release of sensitive information on financial institutions.

Rep. Cummings, who represents a Maryland district, said: “This bipartisan legislation will strengthen one of our most critical open government laws by bringing greater sunlight to federal agency actions. There should be a presumption of openness in this country, and agencies should have to justify their actions when they want to withhold information from the American people.”
 
Highlights of the bill, as described by Issa’s office:

Establishes Presumption of Openness
The bill would require agencies to process FOIA requests with a presumption of openness.  Under this act, an agency could only withhold information if the agency reasonably forsees that disclosure would cause specific identifiable harm. The bill places the burden on the agency to demonstrate why information may be withheld, instead of on the public to justify release.
 
Requires Agencies To Post Frequently Requested Information
Agencies would be required to post all releasable information requested three or more times online in a publicly accessible format. Agencies would also have to review their systems of records and post releasable information online if it is likely to be in the public interest. 

Agency annual FOIA reports would be required to include how many records it made available proactively. All raw data in agency FOIA reports would also be made available online in an accessible and fully useable format.
 
Imposes a 25 Year Sunset on Applications of FOIA’s Exemption 5
The bill imposes a 25 year sunset on an agency’s use of the “deliberative process” exemption under FOIA. 
 
Establishes Single Portal for FOIA Requesters
The FOIA Act will require the operation of a consolidated online request portal that allows a member of the public to submit a request for records from a single website.
 
Strengthens the FOIA Ombudsman (Office of Government Information Services)
The Office of Government Information Services (OGIS) would have increased independence under the FOIA Act which would authorize OGIS to report directly to Congress without interagency review. 
 
Strengthens Oversight and Review of FOIA Compliance
OGIS and the agency Chief FOIA Officers would be responsible for regularly reviewing FOIA compliance.  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 FOIA Act would allow requesters to have 90 days to file an appeal under FOIA (previously undefined), as well as their right to seek mediation services and dispute resolution from OGIS.  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 would be required to include procedures on dispute resolution and working with OGIS.  OGIS would be required to review whether agencies comply with this requirement 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, would be established by the FOIA Act which would include all Chief FOIA Officers.
 

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