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Washington, DC, December 4, 2012 – A government-wide Freedom of Information Act audit by the National Security Archive has found that sixty-two out of ninety-nine government agencies have not updated their FOIA regulations since US Attorney General Eric Holder issued his March 19, 2009 FOIA memorandum to all heads of executive departments instructing them to make discretionary FOIA releases of documents that might be technically exempt from release (especially with respect to the "deliberative" b(5) exemption), to proactively post records of interest to the public, and to remove "unnecessary bureaucratic hurdles."


Original FTC regulations from 1975, still on the books.

Fifty-six agencies have not updated their Freedom of Information Act regulations since the passage of the OPEN Government Act of 2007, which mandated that agencies reform their fee structures, institute request tracking numbers, publish specific data on their FOIA output, and cooperate with the new FOIA mediators at the Office of Government Information Services.

Three previous Knight Open Government Surveys conducted by the National Security Archive found that despite President Obama's day-one clarion call to improve FOIA, results at the agency level have been extremely mixed – at best. For example, after Obama's first year in office, only 13 agencies could point to concrete changes to their FOIA practices; two years into the Obama presidency, and after a sharply-worded White House memo, only 49 agencies had taken concrete steps to improve their FOIA practices. The primary cause of this FOIA failure has been the inability of Congress and the White House to find a way to compel recalcitrant agencies to comply with FOIA.

"Outdated agency regulations really mean there's an opportunity here for a second-term Obama to standardize best practices and bring all the agencies up to his day-one openness pledge," said Tom Blanton, director of the National Security Archive. At government-wide FOIA training sessions, chief FOIA officials have stated that agency FOIA regulations are the primary tools that FOIA officers should rely upon to make proper decisions while processing the public's FOIA requests.

Of course, recently updated regulations do not automatically make good regulations. The Federal Reserve System – which updated its regulations in October 2012 – continues to stiff requesters by allowing just ten days to appeal FOIA denials – including postal transit time! The Department of Justice recently received the National Security Archive's "Rosemary Award" for worst open government performance by a federal agency for attempting to sneak through regulations that would allow lying to FOIA requesters, exempting online publications from being considered news media, and disqualifying most students from receiving FOIA fee waivers.

According to the Archive's findings, "best practice" regulations would include:

  • Joining the FOIAonline portal, a government-wide, one stop shop for requesting, tracking, and proactively posting digital versions of FOIA'd documents. (Currently only six agencies have joined.)
  • Embracing direct communications with requesters to focus, narrow, and clarify requests rather than rejecting outright requests not perfectly constructed.
  • Ending the practice of using fees to discourage requests. All news media (online or print), students, teachers, new media, bloggers, tweeters, and online-only publications should be granted fee waivers. (Recouped FOIA fees pay for just one percent of all FOIA costs.)
  • Substantially reducing the use of discretionary withholdings, such as the b(5) "deliberative process" exemption. Congress mandated that documents under the Presidential Records Act -concerning decisions made at the highest level- cannot be withheld under the b(5) exemption after the president leaves office. At the very least, this standard should also apply to documents requested under FOIA.
  • Preventing requests from becoming lost in "consultation" and "referral" black holes where multiple (sometimes endless) reviews and re-reviews can cause extreme delays in releases or even lost requests. These black holes can be avoided by sending requests for consultation and/or referral as rarely as possible; informing requesters of the status of their requests (even if they are being processed by a different component or agency); and continuing to track the progress and ensure the completion of FOIA requests, even after they have been passed along to other parts of the government.
  • Proactively posting documents of likely interest to the public, such as the Department of the Interior's response to the 2010 Deep Water Horizon Gulf oil spill, as required by the 1996 e-FOIA Amendments.

The Archive's audit also found that seventeen agencies did not properly post their regulations on their FOIA websites, as required by the Electronic FOIA Amendments of 1996. (Twelve agencies have not updated their regulations since the E-FOIA Amendments became law.) The National Security Archive sent FOIA requests to these seventeen derelict agencies requesting copies of their FOIA regulations, but after three months only seven have responded; the law requires that agencies respond within 20 business days.

One agency, the US Trade and Development Agency, explained that it does not even have FOIA regulations, because, bafflingly, it " currently does not have a Code of Federal Regulations chapter."


Excerpt from USTDA FOIA request appeal response letter.

The oldest FOIA regulation on the books belongs to the Federal Trade Commission, which has not been updated since 1975. The FTC does have a FOIA website and online submission form. However, the website's "What's new with FOIA" section lists a 2005 George W. Bush Executive Order.

According to the Archive's FOIA Coordinator, Nate Jones, "These forgotten regulations and FOIA backslides demonstrate that President Obama needs to install a Transparency Bulldog in the White House whose sole responsibility is to track, cajole, and force federal agencies into complying with the law of the Freedom of Information Act and ensure that the President's commitments to openness are not ignored by the agencies he leads."

Are Agency FOIA Regulations up to Date with FOIA Improvements?

Agencies highlighted in GREEN have updated their FOIA regulations since the passing of the Open Government Act on December 31, 2007. Agencies highlighted in RED have not updated their FOIA regulations since the passage of the act. Agencies highlighted in DARK RED have no FOIA regulations.

 

AGENCY DATE OF LAST UPDATE
Federal Mediation and Conciliation Service 11/06/2012
Federal Energy Regulatory Commission 10/29/2012
Federal Open Market Committee 10/12/2012
Federal Reserve System 10/12/2012
Federal Retirement Thrift Investment Board 10/09/2012
Federal Mine Safety and Health Review Commission 08/14/2012
Special Inspector General for Afghanistan Reconstruction 06/27/2012
Federal Housing Finance Agency 01/31/2012
National Labor Relations Board 01/31/2012
Commodity Futures Trading Commission 12/23/2011
Nuclear Regulatory Commission 11/22/2011
Securities and Exchange Commission 11/21/2011
Federal Deposit Insurance Corporation 10/14/2011
Department of Veterans Affairs 08/19/2011
Environmental Protection Agency 08/11/2011
United States Copyright Office 05/13/2011
Federal Communications Commission 05/02/2011
Special Inspector General for Iraq Reconstruction 04/26/2011
Administrative Conference of the US 04/05/2011
Federal Maritime Commission 02/24/2011
Federal Financial Institutions Examination Council 11/22/2010
Council on Environmental Quality 08/11/2010
Occupational Safety and Health Review Commission 07/16/2010
Department of Education 06/14/2010
Tennessee Valley Authority 03/12/2010
Department of Transportation 02/02/2010
Department of the Treasury 01/06/2010
Federal Election Commission 01/04/2010
Equal Employment Opportunity Commission 12/07/2009
Recovery Accountability and Transparency Board 11/20/2009
Postal Regulatory Commission 11/05/2009
Surface Transportation Board 10/15/2009
Federal Labor Relations Authority 10/01/2009
National Science Foundation 07/02/2009
Pension Benefit Guaranty Corporation 06/08/2009
Department of the Interior 04/14/2009
Attorney General Eric Holder FOIA Guidelines, March 19, 2009
National Archives and Records Administration 01/28/2009
Department of Housing and Urban Development 11/26/2008
Legal Services Corporation 11/17/2008
National Credit Union Administration 10/01/2008
Millennium Challenge Corporation 09/17/2008
United States Trade Representative 06/20/2008
OPEN Government Act of 2007, December 31, 2007
Social Security Administration 12/10/2007
Council of the Inspectors General on Integrity and Efficiency 11/27/2007
Department of Agriculture 11/27/2007
Department of State 10/11/2007
Office of Government Ethics 08/28/2007
Office of the Director of National Intelligence 08/16/2007
Office of Special Counsel 07/25/2007
Central Intelligence Agency 07/18/2007
Peace Corps 05/14/2007
National Transportation Safety Board 04/16/2007
Department of Energy 11/28/2006
Inter-American Foundation 10/30/2006
Department of Commerce 06/01/2006
Department of Labor 05/30/2006
National Indian Gaming Commission 04/19/2006
Farm Credit Administration 11/17/2005
Office of Personnel Management 05/31/2005
United States Postal Service 06/23/2004
Small Business Administration 04/23/2004
Railroad Retirement Board 10/29/2003
Court Services and Offender Supervision Agency 06/03/2003
United States International Trade Commission 06/03/2003
American Battle Monuments Commission 02/26/2003
Department of Justice 01/31/2003
Department of Homeland Security 01/27/2003
The Intelligence Authorization Act of 2002 amending the FOIA, November 27, 2002
Commission on Civil Rights 11/22/2002
Department of Defense 05/09/2002
Broadcasting Board of Governors 02/27/2002
Chemical Safety and Hazard Investigation Board 11/24/2000
Overseas Private Investment Corporation 10/27/2000
Merit Systems Protection Board 08/10/2000
Committee for Purchase from People who are Blind or Severely Disabled 06/02/2000
National Aeronautics and Space Administration 04/12/2000
Office of National Drug Control Policy 12/15/1999
Export-Import Bank 03/25/1999
General Services Administration 10/23/1998
National Mediation Board 08/19/1998
Corporation for National and Community Service 05/13/1998
Office of Management and Budget 04/27/1998
Amtrak 02/13/1998
Defense Nuclear Facilities Safety Board 12/22/1997
Farm Credit System Insurance Corporation 09/23/1997
Consumer Product Safety Commission 09/02/1997
The Electronic Freedom of Information Act Amendments of 1996, October 2, 1996
Agency for International Development 08/20/1996
Armed Forces Retirement Home 06/15/1994
U.S. International Boundary and Water Commission 09/04/1990
Department of Health and Human Services 11/25/1988
National Endowment for the Arts 12/21/1987
National Endowment for the Humanities 12/21/1987
Institute of Museum and Library Services 12/21/1987
National Capital Planning Commission 09/11/1987
Selective Service System 04/24/1987
United States African Development Corporation 07/17/1985
Office of Science and Technology Policy 03/15/1983
Office of Navajo and Hopi Indian Relocation 01/14/1982
The 1976 Government in the Sunshine Act Amendments, September 13, 1976
Federal Trade Commission 02/21/1975
United States Trade and Development Agency NO REGULATIONS
Freedom of Information Act, July 4, 1966, and The Privacy Act Amendments of 1974, November 21, 1974

 

Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's series of Knight Open Government Surveys started in 2002 and use open government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Knight Open Government Surveys led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:

UPDATE: This post has been updated to reflect that as of October 1, 2012, six agencies, rather than three, have joined FOIAonline.

Support for this FOIA Audit was generously provided by the CS Fund and the Open Society Foundations. Support for previous FOIA Audits was provided by the John S. and James L. Knight Foundation.

 

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