An Updated Freedom of Information Law Could Add to Reporters’ Toolbox

By Chris Adams

One of the best tools for reporters recently got a face-lift.

The FOIA Improvement Act of 2016, passed with bipartisan support and signed by President Barack Obama, made several modifications to the law that allows members of the public to request access to records and data maintained by federal agencies.

In a National Press Foundation video (and a corresponding session with NPF Paul Miller fellows), two legal experts explained changes to the law and how they could impact day-to-day reporting.

Adam Marshall, the Knight Foundation litigation attorney for the Reporters Committee for Freedom of the Press, and Alison Schary, a media lawyer with Davis Wright Tremaine LLP, explained some of the key provisions of the updated law:

  • What is known as the “foreseeable harm” standard has been codified into law. It means that even if a requested record is exempt from disclosure, the agency still has to release the record unless it can reasonably demonstrate any harm that could come from disclosure (or unless disclosure is prohibited by law).
  • Records that have been exempt from disclosure under the “deliberative process privilege” must be released after 25 years; that could be a boon for historians, as well as for journalists who are writing about internal decision-making from, say, the administration of President Ronald Reagan.

There are other modifications to deadlines and other aspects of the law, all detailed in a piece Marshall wrote: “What the FOIA reform act means to you.”

Marshall described the exemptions to release of information, gave practical tips for creating a FOIA (instructions here on his organization’s website), and pointed reporters to federal statistics on FOIA responsiveness.

Schary said she was optimistic the public could soon see plenty of FOIA-infused reporting – both because of the information that will come out and because people are interested in pushing the legal limits of the improved law.

“FOIA is an important part of reporting and holding government accountable, and I think there’s a lot of interest in reporting on the way government works right now and … digging into those documents,” she said. “So I think we’re going to see a lot of document-heavy FOIA reporting in the future.”

Paul Miller fellows also heard from Brad Heath, an investigative reporter at USA Today, who documented how FOIA works for him – and how he works FOIA. A lot. His top tip is also one of the simplest: file a FOIA a day. Sometimes two.

Something interesting happening in the news? Heath will dash off a FOIA request to flesh out the story. Sometimes the records come back, and sometimes they don’t. But Heath said it’s often just as worthwhile to write a story on FOIAs that are denied as it is to write on those that are granted.

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