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Posted - March 13, 2013

For more information contact:
Tom Blanton/Nate Jones/Lauren Harper 202/994-7000 or nsarchiv@gwu.edu

Washington, DC, March, 2013 – A clear majority of federal agencies have failed to update their Freedom of Information Act regulations to comply either with Congress's changes to the law in 2007 or President Obama's and Attorney General Holder's changes to the policy in 2009, according to a revised government-wide audit published today by the independent non-governmental National Security Archive (www.nsarchive.org) to mark Sunshine Week.

Revised to include agency changes since the findings were first published in December 2012, the audit found that 53 out of 100 agencies did not change their regulations to meet the requirements Congress put into law with the OPEN Government Act of 2007. Those amendments prohibited agencies from charging processing fees if they missed the response deadlines, ordered agencies to cooperate with the new FOIA ombudsman, the Office of Government Information Services (OGIS), and required reports of specific data on their FOIA output.

Because agencies have not changed their FOIA regulations, some are still charging improper FOIA fees (and being defended in court by the Justice Department), and OGIS has had to conduct agency-by-agency outreach to inform FOIA shops of its mission which includes working to solve FOIA disputes through mediation rather than court battles.

An even larger number of agencies – 59 out of 100 – ignored the 2009 Obama-Holder guidance in their regulations. That guidance declared a "presumption of disclosure," encouraged discretionary releases even when the information might technically be covered by an exemption, if there was no foreseeable harm, ordered proactive online publication of records of greatest interest to the public, and told agencies to remove "unnecessary bureaucratic hurdles."

Despite Holder's guidance, the government used the "discretionary" b(5) exemption 66,353 times last year, actually rising 17.9 percent from the previous year. (The number of FOIA requests processed rose only 5.3 percent.) Though there have been some examples of proactive posting of documents (including the Department of Interior's and National Oceanic and Atmospheric Administration's ongoing posting of Deepwater Horizon documents), "unnecessary bureaucratic hurdles" such as petty fee disputes and endless interagency referrals still frustrate requesters and lead in some case to twenty-year-old FOIA requests.

"As President Obama begins his second term, his administration has an opportunity it should not pass up," said National Security Archive director Tom Blanton, "to order all agencies to update their FOIA regulations to comply with the law and instill a presumption of openness."

According to the Archive's audit, three agencies, the Department of Interior, Federal Communications Commission, and Federal Housing Finance Agency, have recently updated their FOIA regulations. Troublingly, only the Department of Interior's updated regs include the utilization of OGIS mediation; and none incorporate AG Holder's instruction that information should be withheld only if "the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions." These lackluster updates underline the fact that new regulations do not necessarily make for good regulations, especially when the lead FOIA Agency, the Department of Justice Office of Information Policy (OIP), infamously attempted to sneak through regulations that would have allowed lying to FOIA requesters, exempted online publications from being considered news media, and disqualified most students from receiving FOIA fee waivers last year.

This Sunshine Week, to ensure that updated regulations are actually improved regulations, the National Security Archive has drafted the "Top Ten Best FOIA Practices" for agencies to work off as they update their – sometimes decades-old – regulations.

Ideal FOIA regulations should:

  • Mandate that FOIA officers embrace direct communications with requesters.
  • Require agencies to receive requests by e-mail, post all FOIA responses and released FOIA documents online, in addition to proactively posting documents of likely interest to the public on their website before they are requested via FOIA.
  • Direct agencies to update their FOIA processing software so that it can generate all FOIA data (including responses and documents) in a non-proprietary machine-readable format, that can be posted to any online repository, including the government-sponsored FOIAonline.
  • Encourage agencies to join the FOIAonline portal to improve FOIA efficiency and save money on expensive processing systems.
  • Include language on the availability and importance of mediating FOIA disputes with OGIS to avoid the animosity and costs of litigation.
  • Ameliorate "consultation" and "referral" black holes (where requests are shipped off to other agencies for seemingly countless reviews and re-reviews) by requiring the monthly pinging of the agencies that the documents were referred to, and sending monthly updates to the requester.
  • End the practice of using fees to discourage requests (collected FOIA fees make up just one percent of all FOIA costs, and are paid to the Treasury's "General Fund," not to individual agencies.)
  • Follow Attorney General Holder's instruction to reduce dramatically the use of discretionary withholdings, such as the b(5) "deliberative process" exemption.
  • Change the "tolling" provisions that keep requests in purgatory until (unnecessary) fee issues are resolved, and enforce the provision of the 2007 Open Government Act that prevents agencies from collecting fees if they miss their 20-day deadline.
  • Provide adequate deadlines for appeal rights (the Federal Reserve System allows requesters just ten days to appeal FOIA denials – including postal transit time).

The National Security Archive has conducted twelve FOIA audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have 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:

Findings from the Archive's December 2012 Regulations Audit were the lead item in the February 4, 2013 letter written by chairman Darrell Issa and ranking member Elijah Cummings of the House Committee on Oversight and Reform that informed director of DOJ OIP, Melanie Pustay, that because of outdated FOIA regulations, "it is unknown whether agencies are complying with the Attorney General's presumption of openness or the significant changes in fees and requester classes under the OPEN government Act."

Several of the Archive's "Best FOIA Practices" were also included in the bipartisan FOIA-strengthening legislation drafted by Issa and Cummings and announced yesterday. The legislation would require all agencies to update their FOIA regulations within 180 days of the law's enactment.

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 Communications Commission 02/15/2013
Department of the Interior 01/30/2013
Federal Housing Finance Agency 12/10/2012
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
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
Consumer Financial Protection Bureau 07/28/2011
United States Copyright Office 05/13/2011
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
Attorney General Eric Holder FOIA Guidelines, March 19, 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
National Archives and Records Administration 06/27/2002
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

 

 

 

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