Congress Gives FOIA a Modest but Important Update For Its 50th Birthday: 2016 in Review
Congress Gives FOIA a Modest but Important Update For Its 50th Birthday: 2016 in Review
Aaron Mackey
Electronic Frontier Foundation
For FOIA’s golden anniversary, EFF and other transparency advocates were hoping for a comprehensive set of reforms (our wishlist is here). Although what Congress ultimately passed wasn’t half as robust, the FOIA Improvement Act of 2016 represents some of the most pronounced changes to the law in roughly a decade.
The biggest change: “the presumption of disclosure.”
FOIA now explicitly limits officials' discretion to withhold records by requiring agencies to disclose them by default, with a couple of exceptions. The agency can hold back if it can point to a law other than FOIA that prohibits disclosure. The agency can also withhold the records if it can articulate exactly how disclosure would harm a specific interest protected by FOIA’s exemptions, such as an individual’s private medical records or classified military files.
The FOIA reforms have already had an impact. One of EFF’s allies, the National Security Archive, had been fighting in court for years to disclose a volume of the CIA’s Bay of Pigs invasion history. The CIA had long claimed that the document could not be released on grounds that it would reveal internal decision-making, i.e. deliberative process. After the law passed, the CIA reversed course and released the document to the Archive. You can read the newly released history here.
