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Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by- Side Analysis

CRS Report – Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis. Daniel J. Richardson, Research Assistant, Wendy Ginsberg, Analyst in American National Government. February 26, 2015.
“Both the House and Senate are currently considering legislation that would make substantive changes to the Freedom of Information Act (FOIA). FOIA was originally enacted in 1966 and has been amended numerous times since—most recently in 2009. FOIA provides the public with a presumptive right to access agency records, limited by nine exemptions that allow agencies to withhold certain types or categories of records. The legislation under consideration in the 114th Congress, S. 337 and H.R. 653, is largely based on bills from the 113th Congress, S. 2520 and H.R. 1211. Both of the bills in the current Congress seek to amend a number of provisions of FOIA for the purpose of increasing public access— including improving electronic accessibility of agency records, clarifying the right to request information related to intra- and inter-agency memoranda or letters, standardizing the use of search and duplication fees by agencies, and requiring agencies to notify requestors of dispute resolution processes for requests that have been denied. Both bills would also create a Chief FOIA Officers Council, responsible for informing government-wide FOIA administrators of best practices, and would establish new FOIA-related oversight responsibilities and reporting requirements. In addition, both the House and Senate legislation would establish a statutory “presumption of openness,” whereby information may only be withheld if it harms an interest protected by a statutory exemption or if disclosure is prohibited by law. This presumption of openness would codify the principles outlined in the current Administration’s guidance on FOIA. While these bills address a number of similar topics, often in similar ways, there are substantive differences between them. For instance, S. 337 provides a timetable for the assessment of fees if an agency fails to comply with a statutory FOIA request response deadline. Conversely, H.R. 653 would authorize applicable federal inspectors general to review agencies’ FOIA compliance and recommend the agency head take potential adverse actions against improper or negligent execution of the law. In addition, H.R. 653 includes new language seeking to narrow the exemption that provides for agencies’ withholding of intra- or inter-agency records. A summary of provisions in both bills, a side-by-side comparison of these provisions, and analysis of selectedprovisions is provided in this report.”

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