Partners Release Model FOIA Regulations

Last week several OTG partners released a “model FOIA regulation” in advance of the launch of an effort by the Office of Information Policy (OIP) at the Department of Justice to develop a common FOIA regulation that all agencies can adopt. As you may know, each of the 99 agencies that process FOIA requests have a FOIA regulation that explains in detail how the agency implements the law, and what requesters must do to have their request processed. Many of the standards and deadlines in these regulations are varied, and, as the National Security Archive has reported, many have not kept pace with changes in the law.

The model FOIA regulations, which were developed by our partners Citizens for Responsibility and Ethics in Washington (CREW), the Electronic Information Privacy Center (EPIC) , and the National Security Archive, are aimed at making it easier for the public to use FOIA to access government records. As outlined on the website the groups set up to promote the model, the regulations would:

  • Protect media access by treating an online-only news organization as a “representative of the news media” and thereby qualifying for a FOIA fee waiver.
  • Save taxpayer resources by encouraging agencies to post documents released through the FOIA process online.
  • Provide agencies with a concrete process for applying the oft-abused “pre-decisional” Exemption 5 by including a public interest balancing test and limiting the exemption’s use to documents created less than 12 years ago.
  • Make disclosure the default by formalizing the president’s directive for an agency to release information in response to a request except when the agency clearly identifies specific, foreseeable harm arising from the disclosure.
  • Reduce 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.
  • End the paper chase by allowing agencies to avoid unnecessary consultations through the use of inter-agency agreements.
  • Manage expectations around FOIA appeals by setting a uniform 60-day deadline.
  • Encourage dispute mediation by informing the public that the Office of Government Information Services can help settle disputes.
  • Reduce disputes over fees by clarifying several issues.
  • Apply the law on fees so agencies do what Congress intended.

OTG highlighted the need to address some of these issues during our recent testimony on reforming FOIA before the Senate Judiciary Committee. In particular, the model regulations are notable for making it clear that agencies should not use FOIA’s Exemption 5, which the agency has the discretion to use to protect inter- and intra- agency records from release, as the “We don’t want to give it to you,” exemption (We’ve written about particularly troubling recent uses of Exemption 5 here, and the National Security Archive has an extensive list of examples of the exemption’s abuse here). Having agencies adopt clear standards and guidelines for when a record should not be withheld under Exemption 5, like those included in the model FOIA regulation, would be an important step towards greater openness.

Another particularly important aspect of the regulations is the emphasis they place on having agencies publicly post any records that they have released through the FOIA process (In addition to discussing this in our testimony, we encouraged the government to post all released records as one of our “5 Big Ideas to Kickstart Openness” in the 2013 Secrecy Report). Once the government has made the investment in searching for documents and redacting anything that cannot be released to the public, the default should be that the public has online access to them. Currently agencies are required to post “frequently requested documents,” which has been defined to mean a record that has been requested (or the agency expects to be requested) three or more times. Unfortunately, though, most agencies do not have a system to track how many times a record has been requested and many agencies have very few documents posted in their FOIA Reading Rooms. Adopting a “release to one is a release to all” policy would cut down on the number of times the government processes the same document.

On Wednesday, May 28 several representatives of the requester community, including OTG staff, will be meeting with OIP to provide them with input on what we would like to see on their common FOIA regulation, and to discuss this model. OIP will begin meeting with agencies about the common FOIA regulation the next day. We hope that the Wednesday meeting is only the first of several times OIP involves the requester community in the development of a common regulation.

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