FOIA Improvement Act of 2016 changes “Availability of Records”
On September 28, 2017, the EEOC issued a Final Rule (FOIA Improvement Act of 2016) in the Federal Register to update its Freedom of Information Act (FOIA) procedures. The Interim Final Rule was published in the Federal Registry on December 29, 2016 and was open for public comment for 30 days. FOIA procedures 29 CRF Part 1610 (“Availability of Records”) was changed to conform to the new Act and: • Codifies the presumption of openness;
• Limits the FOIA exempt for agency communications to allow the disclosure of agency records created 25 years or more before the date of a FOIA request; and
• Creates a Chief FOIA Officer Council co-chaired by the Office of Information Policy at the Department of Justice, and the Office of Government Information Services at the National Archives and Records Administration.
According to the revisions, federal agency must:
• Provide the FOIA requesters with notice that they have a minimum of 90 days to appeals from an adverse determination and a right to seek dispute resolution assistance;
• Make disclosable records and documents available for public inspection in an electronic format;
• Make available for inspection in an electronic format records that have been requested three or more times;
• Submit an agency annual report to the attorney general and to the Director of the Office of Government Information Services;
• Make raw annual report statistical data electronically available for public inspection;
• Not charge a fee for providing records when the agency misses a deadline for complying with a request unless circumstances apply and more than 5,000 pages are necessary to respond to the request; and
• Disclose information requested under FOIA exemption (b)(5) unless the agency reasonably foresees that such disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law, and consider partial disclosures, and take steps to segregate and release nonexempt information.