This Sunshine Week, the National Security Archive is reporting that 50 out of 101 agencies have not updated their FOIA regulations since the OPEN Government Act of 2007. Even fewer have updated since President Barack Obama committed to improving the FOIA in 2009. One, the Federal Trade Commission, hasn’t updated its regulations since 1975. Luckily, the House of Representatives and the White House are, belatedly, taking up the case.
Up-to-date FOIA regulations are the most important tool FOIA officers must have – literally at their fingertips – to ensure they are processing requests correctly. As such, it’s extremely frustrating that such a basic and rudimentary step has been ignored by many agencies, and described as “not required” by the highest FOIA official in the U.S. government.
The House of Representatives recently unanimously passed the bipartisan Freedom of Information Act Implementation Act (H.R. 1211), which includes a provision compelling agencies to update their FOIA regulations. The House bill – which now awaits Senate approval – would require each agency to update its FOIA regulations “not later than 180 days after the enactment of this Act.” At the same time, the White House is addressing the problem of outdated regulations, albeit in a different manner. In its latest Open Government Partnership National Action Plan, the White House has committed (on paper, at least) to create one common, government-wide set of FOIA regulations that would make it “easier for the Government to keep regulations up to date.”
Both plans have a long way to becoming a reality. And in both cases, the devil will be in the details, and open government watchdogs must be vigilant to ensure that the regulations are progressive, rather than regressive.
Currently, the DOJ’s Office of Information Policy is responsible for ensuring that agency regulations are up to-date and reflect recent improvements to the FOIA. However, OIP’s role as the federal FOIA defender is highly questionable, considering the DOJ itself has not updated its own regulations since 2003. Worse still, OIP recently proposed new regulations that would have been misleading to FOIA requesters about the existence of some documents, exempted online publications from being considered news media, and disqualified most students from receiving FOIA fee waivers. These FOIA backtracks were a large reason the Justice Department was the first ever back to back winner of the National Security Archive’s Rosemary Award for worst open government performance by a federal agency.
It will be up to the open government community to ensure that updated regulations – either on an agency-by-agency basis or by one common, government-wide set – embody the principles of open government and ensure that more documents are released to requesters, more quickly. Reforms that must be included in any successful FOIA regulations update are ones that would mandate that FOIA officers embrace direct communications with requesters, and include language on the OGIS, which can help requesters and agencies mediate disputes to avoid animosity and costly litigation. Best practice regulations must also encourage agencies to bring their FOIA processing into the digital age by requiring that agencies receive requests by e-mail and post all responses and documents on FOIAonline. Finally, best practice regulations must end the practice of using fees to discourage FOIA requesters.
The House of Representatives and the White House’s genuine, if late, acknowledgment of the importance of updating outdated FOIA regulations is something to celebrate this Sunshine Week. If and when this important FOIA reform occurs, it will be up to journalists, frequent FOIA requesters, and open government advocates to ensure that these ever-important regulations improve the FOIA as much as they have the potential to.
Lauren Harper is a research assistant for FOIA Advocacy and Open Government with the National Security Archive.