Federal Freedom of Information Act Celebrates 50th Birthday with Big Makeover

July 5, 2016

President Obama marked the Fourth of July and 50th Birthday of the Freedom of Information Act by signing the  FOIA Improvement Act of 2016 into law. While the Federal FOIA was already the model public records law in the country, today’s amended version is even better for people making FOIA requests. Highlights of the new law include:

  • Codifying the requirement that records must be available in electronic formats.
  • Codifying the “three strikes and you’re in” rule: records which are FOIAed three times must be published online in agencies’ reading rooms.
  • Codifying the presumption of access to government records.
  • Limits the applicability of the “draft materials” FOIA exemption to records less than 25 years old.
  • Expands the role and responsibility of the Office of Government Information Services and creates a Chief FOIA Officers Council to improve FOIA oversight.
  • Prohibits an agency from charging a fee for providing records if the agency misses a deadline for meeting a FOIA request unless unusual circumstances apply, and more than 5,000 pages are necessary to respond to the request.

Also of note, the FOIA Improvement Act requires the Office of Management and Budget to create a “consolidated” federal FOIA portal. It appears that this makes FOIA Online, the existing portal, permanent. Unfortunately, the new law does not make it easier for the public to win attorney’s fees when they prevail over an agency in court.

Compared to NYS Freedom of Information Law

FOIL in New York has some catching up to do with the federal FOIA. There’s no statewide FOIL portal, and the state law does not create FOIL reading rooms or require the publication of frequently-requested records in them.

However, New York’s FOIL has featured a presumption of public access to government records by default since 1977. New York is nearly four decades ahead of the curve on this, and the drafters deserve credit for their foresight.