The amendments also significantly change what information can be exempted under FOIA. As previously mentioned, exemptions will now be classified as either mandatory or permissive. Mandatory exemptions are limited to social security numbers, FERPA and legally recognized privileges. All other communications are treated as permissive.
Public bodies applying an exemption would be required to state both why an exemption applies and why the public interest in nondisclosure outweighs the public interest in disclosure for each exemption. This is a change from the current practice, where most exemptions are applied categorically without consideration of the public interest. Requiring a detailed explanation gives requestors more information that will assist them in determining whether an exemption was properly applied. It also makes the exemption process less attractive to public bodies by increasing the burden of taking an exemption.
Amendments to specific exemptions solve common issues with FOIA. Specific examples include:
- Clarifying that an email address, working group contact information, and similar records are not exempt.
- Making a law enforcement officer’s disciplinary records and departmental manuals explicitly nonexempt.
- Eliminating the frequently misapplied “frank communications” exemption.
- Changing the balancing test for law enforcement exemptions to favor disclosure by default.
- Requiring a public body to associate an exemption with each individual redaction and provide a specific description of why the redaction applies.
- Establishing that a public body must show an exemption applies by clear and convincing evidence.
- Clarifying that all records are presumed to be subject to disclosure until a public body can meet its burden of showing an exemption is proper.