Updating agency FOIA regulations --DOJ's guidance and template mostly ignores civil society’s model FOIA regulations

On March 24th, the Department of Justice Office of Information Policy (OIP) released new policy guidance and a template with guidelines and sample language for agencies to use to review and update their own FOIA regulations. OIP announced that the release of the guidance and template marked the conclusion of its work on the OGP NAP 2 commitment to examine the feasibility of, and develop potential content for, a core FOIA regulation. 

Civil Society Model FOIA Regulations for NAP 2

As part of the NAP 2 commitment, throughout 2014 and 2015 OIP convened an interagency working group and met with members of civil society to receive recommendations on model FOIA regulations.

In OTG’s February report on the implementation of the Second NAP, the leads on the FOIA commitment reported that civil society organizations met in 2014 with officials from the OIP and agency volunteers who were working on drafting sections of the common FOIA regulations to discuss proposed model regulations. At that time, OIP laid out a schedule for the work and next steps to develop the regulations. Civil society worked extensively to develop model FOIA regulations, and made them available to OIP and published them online in July 2014. Civil society leaders who were involved in the process have expressed concern, however, over the fact that no drafts of the common FOIA regulations were shared with civil society organizations during the process. Moreover, no draft text was made available to stakeholders in advance of the public release of the guidance and the template on March 24.

Civil Society Model FOIA Commitments for NAP 3

In 2015, OTG and our partners submitted a model commitment on FOIA for the NAP 3.

The model commitment for the NAP 3 recommended the Administration issue guidance to narrow the application of Exemption 5, which is commonly overused to withhold a broad swath of high public interest information. The model commitment recommended requiring agencies to revise their FOIA regulations to follow the model civil society FOIA regulations language on limiting Exemption 5, which includes specific language on applying a public interest balancing test to records withheld under b(5), and stipulate that any “information more than 12 years old is presumptively subject to disclosure, absent specific and documented evidence of harm from disclosure” (§1001.4 Categories of exemptions).

Neither the template nor guidance released by OIP include any mention to Exemption 5. In fact, there is very little mention of the application of the different categories of exemptions anywhere in the template.

Moreover, the model civil society regulations recommended explicitly including the presumption of openness in the provisions on the categories of exemptions.  Yet, the only mention of the presumption of openness appears in the OIP guidance as an optional “additional provision” that goes “beyond the statutory requirements,” and in the template as a general statement about discretionary disclosures. 

Unfortunately, neither those recommendations nor the one below on a required timeline developed by civil society were incorporated into the NAP 3.

The Model Commitment included the recommendation that the Administration mandate that agencies update their FOIA regulations within 180 days of the publication of the NAP 3, so that they come into conformance with the Attorney General’s 2009 guidance on the presumption of openness, and all other requirements of the law. 

A primary concern remains that, without any stipulated requirements for agencies to update their FOIA regulations, agencies – particularly the worst-performing agencies – likely won’t take the necessary steps to do so. Even when agencies do begin the steps to update their FOIA regulations, the lack of a defined timeline allows for a drawn-out process. Last September, for example, OTG and our partners submitted comments on the Department of Homeland Security’s proposed updated FOIA regulations, recommending that the regulations include specific provisions in accordance with the model civil society FOIA regulations. To date, DHS has not published its updated FOIA regulations or provided any timeline on when it plans to do so. 

What’s missing and what’s included in OIP’s guidance and template?

In addition to the provisions mentioned above, there are other civil society recommended provisions missing (in whole or in part) from the OIP guidance and template, such as:

  • Reducing unnecessary secrecy by requiring agencies to review classified documents that are the subject of a FOIA request to see whether they now can be disclosed. The OIP template does include sample language that says, on receipt of any request involving classified information, the agency must conduct a classification review. However, it does not go as far as the model FOIA regulations, which would establish “no-referral/consultation” agreements and state that older documents are less likely to need classification. 
  • Ending the paper chase by allowing agencies to avoid unnecessary consultations through the use of inter-agency agreements. The OIP template does not include the recommended language in the model regulations that say, “As a general rule we find less need for older records to be referred to another agency for review and will draft inter-agency agreements accordingly.”
  • Saving taxpayer resources by encouraging agencies to post documents released through the FOIA process online. The OIP template includes sample language on proactive disclosure, but does not include the model language that would require agencies to make records available that are released through FOIA.

The OIP template does incorporate some of the model provisions from the coalition’s recommendations, including:

  • Managing expectations around FOIA appeals by setting a uniform 60-day deadline.
  • Reducing disputes over fees by clarifying several issues, including providing definitions for terminology associated with fees and fee waiver requests.  
  • Encouraging dispute mediation by informing the public that the Office of Government Information Services can help settle disputes.

An outstanding question is whether OIP will make changes to the template and guidance in response to reforms to the FOIA statute. For example, both FOIA reform bills that have now passed the House and the Senate include provisions that would codify the President’s directive on the presumption of openness. Given that recently disclosed documents show the Justice Department lobbied behind closed doors against the passage of such provisions, it will be important to monitor how the Justice Department responds if the reforms become law, and to encourage OIP to update and modify its guidance and template accordingly. 

This chart provides a side-by-side comparison of the OIP FOIA guidance and template with the model FOIA regulations developed by civil society groups and released in 2014.