FOIA: Majority of Agencies Have Not Updated FOIA Rules to Meet Either Obama's 2009 Order or Congress's 2007 Law

These materials are reproduced from www.nsarchive.org with the permission of the National Security Archive 

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:

• The Ashcroft Memo: "Drastic" Change or "More Thunder Than Lightning"?
• Justice Delayed is Justice Denied
• A FOIA Request Celebrates Its 17th Birthday: A Report on Federal Agency FOIA Backlog
• Pseudo-Secrets: A Freedom of Information Audit of the U.S. Government's Policies on Sensitive Unclassified Information
• File Not Found: 10 Years After E-FOIA, Most Federal Agencies are Delinquent
• 40 Years of FOIA, 20 Years of Delay
• Mixed Signals, Mixed Results: How President Bush's Executive Order on FOIA Failed to Deliver
• 2010 Knight Open Government Survey: Sunshine and Shadows
• 2011 Knight Open Government Survey: Glass Half Full
• 2011Knight Open Government Survey: Eight Federal Agencies Have FOIA Requests a Decade Old
• Outdated Agency Regs Undermine Freedom of Information.

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.