Don’t shut your eyes to the importance of FOIA regulations

U.S. Public Health Service poster, circa 1941-45
Well-crafted FOIA regulations are a must and will leave agency FOIA professionals resting easy. (ARC Identifier 514682)

Freedom of Information Act regulations sound like a sure cure for insomnia, but if FOIA were a movie, their role would be a real sleeper. We at OGIS recognize that well-crafted FOIA regulations are key to an effective agency FOIA process so we regularly comment on proposed changes to regulations as part of our statutory mission to review agency FOIA policies, procedures and compliance. Regulations set the stage for an agency’s FOIA program and exist for both requesters and agency FOIA professionals.   

The FOIA statute itself says that agencies shall have regulations that

  • Specify a fee schedule and limit those fees to reasonable standard charges;
  • Designate agency components to receive requests; and  
  • Provide for expedited processing.

FOIA also says that agencies may have regulations regarding multi-tracking processing and the aggregation of certain requests by the same requester or group of requesters acting together.

A recent audit of agency FOIA regulations found that more than half of 99 agencies have not updated their FOIA regulations since the OPEN Government Act of 2007, which amended FOIA and created OGIS. The audit, conducted by the nongovernmental National Security Archive, which maintains a clearinghouse of declassified documents, also found that 17 agencies have not posted their regulations on their FOIA websites as required by the E-FOIA of 1996.

The day of the audit’s release, a representative of the National Security Archive joined representatives from OpenThe, the Federal Register and OGIS to discuss best practices for FOIA regulations at the American Society of Access Professionals’ annual symposium and training conference at the National Archives Dec. 4-5.

OGIS recognizes that revising FOIA regulations can be a mammoth task. We’re here to help.

In addition to regularly consulting FOIA regulations as part of our mission of providing mediation services, OGIS monitors the Federal Register for notice of proposed FOIA regulations and revisions, and comments via the public comment process through our parent agency, the National Archives. In the last two years, we’ve commented on 15 proposed department and agency FOIA regulations, as well as proposed FOIA/Privacy Act request forms at two agencies.

We’ve also conducted three collaborative reviews in which we worked with three departments and agencies reviewing their FOIA regulations before the Federal Register comment period.

A set of best practices, based on the comments we’ve submitted, is designed to help agencies that are considering revising their regulations. OGIS suggests, among other things, that agencies include language that establishes

  • A process in which the referring agencies notify requesters of the name of the agency to which the request has been referred, the part of the request that has been referred and a point of contact at the receiving agency;
  • A process for providing requesters with fee estimates, including a breakdown of fees for search, review and duplication, as well as the administrative discretion to waive fees; and
  • A commitment to work with OGIS, including alerting requesters in final agency determinations that OGIS exists to provide mediation services so requesters have an alternative to filing a lawsuit if they are dissatisfied.

If you’re at an impasse on updating your FOIA regulations, contact us and let’s see if we can help you.