The Freedom of Information Act Amended: Process and Pitfalls

On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, Pub. L. No. 114-185, which made significant changes to the Freedom of Information Act, 5 U.S.C. § 552, et seq. (“FOIA”).FOIA Act FOIA can be a great tool for unlocking the federal government’s vast compilations of documents and information, which make it a great resource for business intelligence. But you also should be aware of FOIA’s pitfalls, including how your own business’s confidential documents and information can be disclosed to the public, including the media, if the federal government has them in its possession and they become subject to a FOIA request.

FOIA was enacted in 1966 and allows any member of the public to request access to government information without requiring a showing of a need or reason for seeking the information. FOIA was a revision of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (“APA”). Congress saw that the APA was falling short of its original disclosure goals and that the original law came to be viewed more as a withholding statute than a disclosure statute. See EPA v. Mink, 410 U.S. 73, 79 (1973). Congress’s intent in enacting FOIA was to make the government’s records and activities available and transparent to the public with only a handful of express exemptions that the government could invoke to withhold documents and information from disclosure. Generally the exemptions prevent disclosure of information related to national security, law enforcement investigations, government personnel rules and practices, specific exemptions from other statutes, and trade secret, commercial, or financial information obtained from third parties such as individuals and businesses.

The federal government is a huge Continue reading