PUBLIC LAW 114–185—JUNE 30, 2016
FOIA IMPROVEMENT ACT OF 2016
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130 STAT. 538 PUBLIC LAW 114–185—JUNE 30, 2016
Public Law 114–185
114th Congress
An Act
To improve the Freedom of Information Act.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘FOIA Improvement Act of 2016’’.
SEC. 2. AMENDMENTS TO FOIA.
Section 552 of title 5, United States Code, is amended—
(1) in subsection (a)—
(A) in paragraph (2)—
(i) in the matter preceding subparagraph (A), by
striking ‘‘for public inspection and copying’’ and
inserting ‘‘for public inspection in an electronic format’’;
(ii) by striking subparagraph (D) and inserting
the following:
‘‘(D) copies of all records, regardless of form or format—
‘‘(i) that have been released to any person under paragraph (3); and
‘‘(ii)(I) that because of the nature of their subject
matter, the agency determines have become or are likely
to become the subject of subsequent requests for substantially the same records; or
‘‘(II) that have been requested 3 or more times; and’’;
and
(iii) in the undesignated matter following subparagraph (E), by striking ‘‘public inspection and copying
current’’ and inserting ‘‘public inspection in an electronic format current’’;
(B) in paragraph (4)(A), by striking clause (viii) and
inserting the following:
‘‘(viii)(I) Except as provided in subclause (II), an agency
shall not assess any search fees (or in the case of a
requester described under clause (ii)(II) of this subparagraph, duplication fees) under this subparagraph if the
agency has failed to comply with any time limit under
paragraph (6).
‘‘(II)(aa) If an agency has determined that unusual
circumstances apply (as the term is defined in paragraph
(6)(B)) and the agency provided a timely written notice
to the requester in accordance with paragraph (6)(B), a
failure described in subclause (I) is excused for an additional 10 days. If the agency fails to comply with the
extended time limit, the agency may not assess any search
Time period.
FOIA
Improvement Act
of 2016.
5 USC 101 note.
June 30, 2016
[S. 337]
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PUBLIC LAW 114–185—JUNE 30, 2016 130 STAT. 539
fees (or in the case of a requester described under clause
(ii)(II) of this subparagraph, duplication fees).
‘‘(bb) If an agency has determined that unusual circumstances apply and more than 5,000 pages are necessary
to respond to the request, an agency may charge search
fees (or in the case of a requester described under clause
(ii)(II) of this subparagraph, duplication fees) if the agency
has provided a timely written notice to the requester in
accordance with paragraph (6)(B) and the agency has discussed with the requester via written mail, electronic mail,
or telephone (or made not less than 3 good-faith attempts
to do so) how the requester could effectively limit the
scope of the request in accordance with paragraph (6)(B)(ii).
‘‘(cc) If a court has determined that exceptional circumstances exist (as that term is defined in paragraph
(6)(C)), a failure described in subclause (I) shall be excused
for the length of time provided by the court order.’’;
(C) in paragraph (6)—
(i) in subparagraph (A)(i), by striking ‘‘making such
request’’ and all that follows through ‘‘determination;
and’’ and inserting the following: ‘‘making such request
of—
‘‘(I) such determination and the reasons therefor;
‘‘(II) the right of such person to seek assistance
from the FOIA Public Liaison of the agency; and
‘‘(III) in the case of an adverse determination—
‘‘(aa) the right of such person to appeal to
the head of the agency, within a period determined
by the head of the agency that is not less than
90 days after the date of such adverse determination; and
‘‘(bb) the right of such person to seek dispute
resolution services from the FOIA Public Liaison
of the agency or the Office of Government Information Services; and’’; and
(ii) in subparagraph (B)(ii), by striking ‘‘the
agency.’’ and inserting ‘‘the agency, and notify the
requester of the right of the requester to seek dispute
resolution services from the Office of Government
Information Services.’’; and
(D) by adding at the end the following:
‘‘(8)(A) An agency shall—
‘‘(i) withhold information under this section only if—
‘‘(I) the agency reasonably foresees that disclosure
would harm an interest protected by an exemption
described in subsection (b); or
‘‘(II) disclosure is prohibited by law; and
‘‘(ii)(I) consider whether partial disclosure of information
is possible whenever the agency determines that a full disclosure of a requested record is not possible; and
‘‘(II) take reasonable steps necessary to segregate and
release nonexempt information; and
‘‘(B) Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3).’’;
(2) in subsection (b), by amending paragraph (5) to read
as follows:
Time period.
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130 STAT. 540 PUBLIC LAW 114–185—JUNE 30, 2016
‘‘(5) inter-agency or intra-agency memorandums or letters
that would not be available by law to a party other than
an agency in litigation with the agency, provided that the
deliberative process privilege shall not apply to records created
25 years or more before the date on which the records were
requested;’’; and
(3) in subsection (e)—
(A) in paragraph (1)—
(i) in the matter preceding subparagraph (A), by
inserting ‘‘and to the Director of the Office of Government Information Services’’ after ‘‘United States’’;
(ii) in subparagraph (N), by striking ‘‘and’’ at the
end;
(iii) in subparagraph (O), by striking the period
at the end and inserting a semicolon; and
(iv) by adding at the end the following:
‘‘(P) the number of times the agency denied a request
for records under subsection (c); and
‘‘(Q) the number of records that were made available for
public inspection in an electronic format under subsection
(a)(2).’’;
(B) by striking paragraph (3) and inserting the following:
‘‘(3) Each agency shall make each such report available for
public inspection in an electronic format. In addition, each agency
shall make the raw statistical data used in each report available
in a timely manner for public inspection in an electronic format,
which shall be made available—
‘‘(A) without charge, license, or registration requirement;
‘‘(B) in an aggregated, searchable format; and
‘‘(C) in a format that may be downloaded in bulk.’’;
(C) in paragraph (4)—
(i) by striking ‘‘Government Reform and Oversight’’
and inserting ‘‘Oversight and Government Reform’’;
(ii) by inserting ‘‘Homeland Security and’’ before
‘‘Governmental Affairs’’; and
(iii) by striking ‘‘April’’ and inserting ‘‘March’’; and
(D) by striking paragraph (6) and inserting the following:
‘‘(6)(A) The Attorney General of the United States shall submit
to the Committee on Oversight and Government Reform of the
House of Representatives, the Committee on the Judiciary of the
Senate, and the President a report on or before March 1 of each
calendar year, which shall include for the prior calendar year—
‘‘(i) a listing of the number of cases arising under this
section;
‘‘(ii) a listing of—
‘‘(I) each subsection, and any exemption, if applicable,
involved in each case arising under this section;
‘‘(II) the disposition of each case arising under this
section; and
‘‘(III) the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4); and
‘‘(iii) a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.
Public ‘‘(B) The Attorney General of the United States shall make—
information.
Electronic
format.
Reports.
Deadline.
Time period.
Lists.
Reports.
Public
information.
Electronic
format.
Data.
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PUBLIC LAW 114–185—JUNE 30, 2016 130 STAT. 541
‘‘(i) each report submitted under subparagraph (A) available
for public inspection in an electronic format; and
‘‘(ii) the raw statistical data used in each report submitted
under subparagraph (A) available for public inspection in an
electronic format, which shall be made available—
‘‘(I) without charge, license, or registration requirement;
‘‘(II) in an aggregated, searchable format; and
‘‘(III) in a format that may be downloaded in bulk.’’;
(4) in subsection (g), in the matter preceding paragraph
(1), by striking ‘‘publicly available upon request’’ and inserting
‘‘available for public inspection in an electronic format’’;
(5) in subsection (h)—
(A) in paragraph (1), by adding at the end the following:
‘‘The head of the Office shall be the Director of the Office
of Government Information Services.’’;
(B) in paragraph (2), by striking subparagraph (C)
and inserting the following:
‘‘(C) identify procedures and methods for improving compliance under this section.’’;
(C) by striking paragraph (3) and inserting the following:
‘‘(3) The Office of Government Information Services shall offer
mediation services to resolve disputes between persons making
requests under this section and administrative agencies as a nonexclusive alternative to litigation and may issue advisory opinions
at the discretion of the Office or upon request of any party to
a dispute.’’; and
(D) by adding at the end the following:
‘‘(4)(A) Not less frequently than annually, the Director of the
Office of Government Information Services shall submit to the
Committee on Oversight and Government Reform of the House
of Representatives, the Committee on the Judiciary of the Senate,
and the President—
‘‘(i) a report on the findings of the information reviewed
and identified under paragraph (2);
‘‘(ii) a summary of the activities of the Office of Government
Information Services under paragraph (3), including—
‘‘(I) any advisory opinions issued; and
‘‘(II) the number of times each agency engaged in dispute resolution with the assistance of the Office of Government Information Services or the FOIA Public Liaison;
and
‘‘(iii) legislative and regulatory recommendations, if any,
to improve the administration of this section.
‘‘(B) The Director of the Office of Government Information
Services shall make each report submitted under subparagraph
(A) available for public inspection in an electronic format.
‘‘(C) The Director of the Office of Government Information
Services shall not be required to obtain the prior approval, comment,
or review of any officer or agency of the United States, including
the Department of Justice, the Archivist of the United States,
or the Office of Management and Budget before submitting to
Congress, or any committee or subcommittee thereof, any reports,
recommendations, testimony, or comments, if such submissions
include a statement indicating that the views expressed therein
Public
information.
Electronic
format.
Recommendations.
Summary.
Reports.
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130 STAT. 542 PUBLIC LAW 114–185—JUNE 30, 2016
are those of the Director and do not necessarily represent the
views of the President.
‘‘(5) The Director of the Office of Government Information Services may directly submit additional information to Congress and
the President as the Director determines to be appropriate.
‘‘(6) Not less frequently than annually, the Office of Government
Information Services shall conduct a meeting that is open to the
public on the review and reports by the Office and shall allow
interested persons to appear and present oral or written statements
at the meeting.’’;
(6) by striking subsections (j) and (k), and inserting the
following:
‘‘(j)(1) Each agency shall designate a Chief FOIA Officer who
shall be a senior official of such agency (at the Assistant Secretary
or equivalent level).
‘‘(2) The Chief FOIA Officer of each agency shall, subject to
the authority of the head of the agency—
‘‘(A) have agency-wide responsibility for efficient and appropriate compliance with this section;
‘‘(B) monitor implementation of this section throughout the
agency and keep the head of the agency, the chief legal officer
of the agency, and the Attorney General appropriately informed
of the agency’s performance in implementing this section;
‘‘(C) recommend to the head of the agency such adjustments
to agency practices, policies, personnel, and funding as may
be necessary to improve its implementation of this section;
‘‘(D) review and report to the Attorney General, through
the head of the agency, at such times and in such formats
as the Attorney General may direct, on the agency’s performance in implementing this section;
‘‘(E) facilitate public understanding of the purposes of the
statutory exemptions of this section by including concise
descriptions of the exemptions in both the agency’s handbook
issued under subsection (g), and the agency’s annual report
on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which
those exemptions apply;
‘‘(F) offer training to agency staff regarding their responsibilities under this section;
‘‘(G) serve as the primary agency liaison with the Office
of Government Information Services and the Office of Information Policy; and
‘‘(H) designate 1 or more FOIA Public Liaisons.
‘‘(3) The Chief FOIA Officer of each agency shall review, not
less frequently than annually, all aspects of the administration
of this section by the agency to ensure compliance with the requirements of this section, including—
‘‘(A) agency regulations;
‘‘(B) disclosure of records required under paragraphs (2)
and (8) of subsection (a);
‘‘(C) assessment of fees and determination of eligibility
for fee waivers;
‘‘(D) the timely processing of requests for information under
this section;
‘‘(E) the use of exemptions under subsection (b); and
Review.
Deadline.
Designation.
Review.
Reports.
Recommendations.
Designation.
Deadline.
Meeting.
Public
information.
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PUBLIC LAW 114–185—JUNE 30, 2016 130 STAT. 543
‘‘(F) dispute resolution services with the assistance of the
Office of Government Information Services or the FOIA Public
Liaison.
‘‘(k)(1) There is established in the executive branch the Chief
FOIA Officers Council (referred to in this subsection as the
‘Council’).
‘‘(2) The Council shall be comprised of the following members:
‘‘(A) The Deputy Director for Management of the Office
of Management and Budget.
‘‘(B) The Director of the Office of Information Policy at
the Department of Justice.
‘‘(C) The Director of the Office of Government Information
Services.
‘‘(D) The Chief FOIA Officer of each agency.
‘‘(E) Any other officer or employee of the United States
as designated by the Co-Chairs.
‘‘(3) The Director of the Office of Information Policy at the
Department of Justice and the Director of the Office of Government
Information Services shall be the Co-Chairs of the Council.
‘‘(4) The Administrator of General Services shall provide
administrative and other support for the Council.
‘‘(5)(A) The duties of the Council shall include the following:
‘‘(i) Develop recommendations for increasing compliance
and efficiency under this section.
‘‘(ii) Disseminate information about agency experiences,
ideas, best practices, and innovative approaches related to this
section.
‘‘(iii) Identify, develop, and coordinate initiatives to increase
transparency and compliance with this section.
‘‘(iv) Promote the development and use of common performance measures for agency compliance with this section.
‘‘(B) In performing the duties described in subparagraph (A),
the Council shall consult on a regular basis with members of the
public who make requests under this section.
‘‘(6)(A) The Council shall meet regularly and such meetings
shall be open to the public unless the Council determines to close
the meeting for reasons of national security or to discuss information exempt under subsection (b).
‘‘(B) Not less frequently than annually, the Council shall hold
a meeting that shall be open to the public and permit interested
persons to appear and present oral and written statements to
the Council.
‘‘(C) Not later than 10 business days before a meeting of the
Council, notice of such meeting shall be published in the Federal
Register.
‘‘(D) Except as provided in subsection (b), the records, reports,
transcripts, minutes, appendices, working papers, drafts, studies,
agenda, or other documents that were made available to or prepared
for or by the Council shall be made publicly available.
‘‘(E) Detailed minutes of each meeting of the Council shall
be kept and shall contain a record of the persons present, a complete
and accurate description of matters discussed and conclusions
reached, and copies of all reports received, issued, or approved
by the Council. The minutes shall be redacted as necessary and
made publicly available.’’; and
(7) by adding at the end the following:
Records.
Deadline.
Public
information.
Consultation.
Establishment.
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130 STAT. 544 PUBLIC LAW 114–185—JUNE 30, 2016
‘‘(m)(1) The Director of the Office of Management and Budget,
in consultation with the Attorney General, shall ensure the operation of a consolidated online request portal that allows a member
of the public to submit a request for records under subsection
(a) to any agency from a single website. The portal may include
any additional tools the Director of the Office of Management and
Budget finds will improve the implementation of this section.
‘‘(2) This subsection shall not be construed to alter the power
of any other agency to create or maintain an independent online
portal for the submission of a request for records under this section.
The Director of the Office of Management and Budget shall establish
standards for interoperability between the portal required under
paragraph (1) and other request processing software used by agencies subject to this section.’’.
SEC. 3. REVIEW AND ISSUANCE OF REGULATIONS.
(a) IN GENERAL.—Not later than 180 days after the date of
enactment of this Act, the head of each agency (as defined in
section 551 of title 5, United States Code) shall review the regulations of such agency and shall issue regulations on procedures
for the disclosure of records under section 552 of title 5, United
States Code, in accordance with the amendments made by section
2.
(b) REQUIREMENTS.—The regulations of each agency shall
include procedures for engaging in dispute resolution through the
FOIA Public Liaison and the Office of Government Information
Services.
SEC. 4. PROACTIVE DISCLOSURE THROUGH RECORDS MANAGEMENT.
Section 3102 of title 44, United States Code, is amended—
(1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4); and
(2) by inserting after paragraph (1) the following:
‘‘(2) procedures for identifying records of general interest
or use to the public that are appropriate for public disclosure,
and for posting such records in a publicly accessible electronic
format;’’.
SEC. 5. NO ADDITIONAL FUNDS AUTHORIZED.
No additional funds are authorized to carry out the requirements of this Act or the amendments made by this Act. The requirements of this Act and the amendments made by this Act shall
be carried out using amounts otherwise authorized or appropriated.
SEC. 6. APPLICABILITY.
This Act, and the amendments made by this Act, shall take
effect on the date of enactment of this Act and shall apply to
Effective date.
5 USC 552 note.
Deadline.
Procedures.
5 USC 552 note.
Standards.
Consultation.
Portal.
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PUBLIC LAW 114–185—JUNE 30, 2016 130 STAT. 545
LEGISLATIVE HISTORY—S. 337:
SENATE REPORTS: No. 114–4 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 162 (2016):
Mar. 15, considered and passed Senate.
June 13, considered and passed House.
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2016):
June 30, Presidential remarks.
Æ
any request for records under section 552 of title 5, United States
Code, made after the date of enactment of this Act.
Approved June 30, 2016.
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Freedom Of Information Act
