March 18, 2019

March 18, 2019

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Revised Freedom of Information Act Statute May Increase Release of Contractor Data

On June 30, 2016, President Obama signed into law the Freedom of Information Act (FOIA) Improvement Act of 2016.  The new law revises FOIA to codify the Obama Administration’s policy that executives agencies adopt a presumption that openness prevails.  Among other changes, the act also calls for the creation of a new consolidated online FOIA portal permitting a single point of entry to request documents from any agency.  These changes have the potential to increase the number of FOIA requests and the codification of the presumption of openness may make it more difficult for contractors to object to the public release of contract-related information and other agency records.

The presumption of openness has been the stated policy of the Obama Administration since President Obama’s first day in office.  The new law adds the statutory language that agencies may only withhold information if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection” or if the disclosure is otherwise prohibited by law.  This new statutory language will introduce another variable in FOIA-related litigation, particularly in “reverse-FOIA” actions brought by government contractors seeking to prevent agencies from releasing contractor-provided information.

This codification of existing policy all but ensures that this presumption of openness will survive the end of the Obama Administration.  This may put an end to the back and forth FOIA policy changes that accompanied turnover in the White House.  Before President Obama, the George W. Bush Administration’s stated policy had encouraged agencies to be value the importance of protecting the ability of agencies to deliberate and communicate privately.  And prior to that, the Clinton Administration, the policy had espoused principles of openness.  The FOIA Improvement Act in part codifies some of the openness principles put forward by the last two Democratic administrations.

Much of the political press coverage of the FOIA Improvement Act has focused on the new 25-year sunset provision which limits the applicability of the “deliberative process” exemption to documents generated within the past 25 years.  This change will likely result in the release of many older intra- and inter-agency documents that were previously withheld under this exemption.  However, this sunset provision does not extend to the FOIA exemption for trade secrets and commercial or financial information, which is the primary exemption relied upon by contractors to protect their data.

In addition to these major changes, the FOIA Improvement Act makes a number of other changes, including new reporting requirements for agencies and restricting when agencies may charge request processing fees.  It remains to be seen precisely how agencies will choose to implement the new requirements and what form the new consolidated FOIA portal will take.

© 2019 Covington & Burling LLP

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About this Author

Scott Freling, Government Contracts Lawyer,  Covington Law Firm
Partner

Scott Freling divides his practice between working with civilian and defense contractors on traditional government contracts matters and representing buyers and sellers, including a number of private equity firms, in complex M&A deals involving a government contractor.

Mr. Freling represents contractors at all stages of the procurement process and in their dealings with federal, state, and local government customers. In addition, he counsels clients on compliance matters and risk mitigation strategies, including obtaining SAFETY Act liability protection for...

202-662-5244
Nooree Lee, Litigation attorney, Covington Burling, Law firm
Associate

Nooree Lee represents government contractors in a wide variety of litigation and counseling matters across the federal, state, and local government markets. Mr. Lee counsels clients on every legal aspect of government contracts. His primary areas of practice include pre-award and post-award bid protests, grants and cooperative agreements, and suspension and debarment proceedings. In addition, Mr. Lee represents contractors in matters relating to disclosure of confidential data under the Freedom of Information Act.

Mr. Lee also maintains an active pro bono practice focusing on security clearance applications.

202-662-5909