The Society of American Archivists encourages Congress to take the following actions related to the Freedom of Information Act:
- Legislate the following standards:
- That agencies must implement FOIA with a presumption of openness,
- That agencies may withhold information only when they are required by law to do so or can foresee actual harm from disclosure, and
- That agencies must proactively disclose information rather than simply waiting for requests. The requirements for proactively disclosing information should be specific and enforceable.
- Incorporate a public interest balancing test into each exemption, with the possible exception of Exemption 3 (exempted by statute).
- Explain how the foreseeable harm standard for withholding information should be applied. The burden should fall squarely on the agency to show that harm would result from disclosure and to explain the agency’s rationale for that decision. Allow judges to review these decisions.
- Strengthen oversight, compliance, and communication mechanisms.
To reduce persistent delays and backlogs, Congress should:
- Require agencies to post more information online to increase transparency and reduce duplicative processing.
- Require agencies to bring FOIA regulations up to date.
- Encourage agencies to resolve FOIA disputes rather than force requesters into court.
- Encourage the Department of Justice to implement a mechanism to determine which FOIA cases to litigate, rather than litigating the majority of FOIA requests. Provide for transparency in this decision-making process.
- Increase incentives for agencies to respond in a timely manner, such as denying the agency’s right to claim that records are protected by the deliberative process privilege if the agency fails to respond to a FOIA request regarding those records in a timely manner.
- Establish a commission to study methods of reducing delays in response to FOIA requests.
To improve communication between agencies and FOIA requesters, and between the government and the public, Congress should:
- Establish a single website for the public to submit and track requests at any agency. Requesters should be able to track a request that is sent from one agency to another and know who in the new agency is responsible for tracking the request.
- Strengthen the impact of the FOIA ombudsman, the Office of Government Information Services (OGIS), by requiring other agencies to cooperate with the Office's activities.
- Identify proposed and current exemptions to FOIA so that the public may comment.
- Create a federal advisory committee for FOIA, giving the National Archives and Records Administration primary responsibility and including participation by the Department of Justice. The committee should have a broad mandate to initiate recommendations and provide advice on rulemakings, guidance, and other relevant activities.
Approved by the Council: May 2014