For over 50 years, the Freedom of Information Act (FOIA) has provided the public with access to federal government records. The FOIA Improvement Act of 2016 (Improvement Act) has expanded public access to these records. These improvements apply to FOIA requests filed with the Nuclear Regulatory Commission (NRC) and other federal agencies after June 30, 2016.
First, the Improvement Act emphasizes that government records are presumed to be open to the public unless the agency can “reasonably foresee” that disclosure would be harmful; for example, disclosure would be inconsistent with national security, would reveal personal privacy information, or is prohibited by law. But even then, the Improvement Act requires federal agencies to redact the protected information and produce the remainder of the document. This requirement is intended to limit an agency’s ability to withhold entire documents even when major portions contain protected information. The NRC has been fairly reasonable about producing documents with redactions, but the Improvement Act tips the scales even more in favor of the public.
Second, and perhaps of more interest, the Improvement Act creates a rolling sunset date for the “deliberative process privilege” exemption under FOIA. The NRC and other federal agencies often use the deliberative process privilege to withhold inter-agency and intra-agency deliberations. Under the Improvement Act, this privilege vanishes for records created 25 or more years before the date of the FOIA request. This rolling sunset provision will provide access to NRC internal documents (e.g., briefing papers and policy analyses) previously withheld under the veil of agency deliberation and will facilitate transparency regarding safety, environmental, and other nuclear regulatory issues. We have already seen increased access to “deliberative process” materials from the NRC that were created before the sunset date, and the Improvement Act provides more opportunities to appeal NRC FOIA disclosure decisions.
Finally, the Improvement Act contains several procedural enhancements including requirements for federal agencies to produce records in electronic format (which the NRC already does); publish frequently requested records online; provide 90 days to file an appeal (instead of 30 days under NRC regulations); and explicitly inform the public that they can request dispute resolution services from the Office of Government Information Services in lieu of litigation. On December 30, 2016, the NRC amended its regulations to reflect the Improvement Act’s enhancements. Those revised regulations are effective January 30.
Morgan Lewis has handled FOIA requests, appeals, and litigation for decades. If you would like assistance or to know more about the Improvement Act, please contact any of the authors of this post.