International Right To Know Day: How Well Do You Know The US Freedom Of Information Act?

Predecisional material is covered by the FOIA's fifth exemption. The exemption is discretionary, meaning the agency official processing the FOIA request can choose to release the information. Under the Obama Administration's guidelines, agencies are required to release such information unless there is a forseeable harm. Agencies are also supposed to take certain factors into consideration before using exemption 5 to withhold material, including the age of the document. Under the law, however, agencies can -- and do -- withhold any information that technically meets the definition of predecisional.

S. 2520, the bipartisan FOIA Improvement Act, requires agencies to weigh the public interest in the release of information before using exemption 5 to withhold records, and limits the use of the exemption to 25 years.

There are only nine exemptions to the US FOIA. The third exemption, however, brings in any information that is required to be withheld under other provisions of the law. Amazingly, no one in the government has a complete list of how many of these provisions exist in the law.

S. 2520, the bipartisan FOIA Improvement Act, requires the Government Accountability Office (GAO) is required to catalog the number and use of these exemption 3 statutes.

This is a tricky one. OGIS is intended to give advice to the President and Congress on how to improve agency implementation of the law. Currently, though, OGIS' recommendations must be reviewed by the Office of Mangaement and Budget (OMB) before they are sent to the President or Congress. OMB review can take a very long time (OGIS' first set of recommendations were pending at OMB for more than a year), and OMB can request that OGIS make certain changes before they are released.

S. 2520, the bipartisan FOIA Improvement Act, gives OGIS the ability to direct its reports on improving agency implementation of the law directly to the President and Congress.

The US FOIA does not currently include the presumption of openness. Both the Clinton and Obama Administrations issued guidance to agencies directing them to apply the presumption of openness. Guidance sent out during the George W. Bush Administration was quite different, however.

S. 2520, the bipartisan FOIA Improvement Act would lock in the presumption of openness, helping the public use the FOIA as a tool for greater government openness and accountability, and ensuring agency officials charged with processing requests for information are less subject to political pressures.