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New US freedom of information law aimed at fixing 'broken' system

Bill to simplify FOIA requests passes House – but with security services carve-out

By Kieren McCarthy, 12 Jan 2016

An effort to expand and simplify the "broken" freedom of information requests system in America has passed the US House of Representatives in a swift and unexpected approval yesterday.

The legislation will make a number of critical changes, including the provision of a single online request point, a default of releasing information, a partial limit on a common stalling tactic, and the requirement for information requested more than three times to be publicly posted.

H.R. 653, the "FOIA Oversight and Implementation Act of 2015" was approved on the House floor with an expedited voice vote with bi-partisan support. The lead Democrat on the House's Oversight Committee, Elijah Cummings (D-MD) said: "This bill is the product of three years of work, hard work, negotiation and perseverance."

And committee chair Jason Chaffetz (R-UT) noted: "In large part, the FOIA, the way it operates now, is broken. This piece of legislation will make that FOIA process smoother, more effective, more efficient."

There were, however, last-minute changes to the bill, including a carve-out for the security services at the request of the House Intelligence Committee.

FOIA requests will not cover intelligence records or information, regardless of how old they are, "if such disclosure would adversely affect intelligence sources and methods." The intelligence services are able to provide their own reasons why they won't disclose information, where other agencies are required to select from a list of reasons why they feel they cannot provide the information.

New default

That aside, the most significant change is the fact that government agencies will now only be allowed to withhold information if there is "foreseeable harm" to one of the limited FOIA exemptions, such as national security.

While that is currently the case, it is only because of an executive order created by President Obama. The new president would be able to reverse that – as President Bush did after he took over from President Clinton. If the legislation passes, that presidential override will disappear.

The ability to stall information requests by claiming attorney-client privilege and using the vague notion of a "deliberative process" will also be stopped – but only for information that is more than 25 years old.

Another method for denying requests – claiming it would breach privacy rules to provide information since it names employees of government agencies – will also be neutered.

For those making FOIA requests, the system should also get much simpler, with the requirement that there be a "consolidated online request portal" through which people can request information from any agency.

And barriers to frequently requested information will also come down thanks to a new provision that requires the publication online of "copies of all releasable records, regardless of form or format, that have been requested three or more times."

The bill is expected to pass the Senate. Last year there was an effort to introduce a very similar bill. The House approved it; the Senate produced its own version; and the House failed to consider it before the Congress ended for the year. This time around, it should go through without any significant issues. ®

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