Agency FOIA Regulations Update

As you might know, the Freedom of Information Act (FOIA) requires agencies to issue regulations that describe a few key areas of how the agency processes requests for information. Most agency FOIA regulations go beyond the bare bone requirements laid out in the law, however. The best agency FOIA regulations act as a map that helps both requesters and the agency navigate the process.

Agencies update their regulations to reflect changes in law, policy or practice. As we have discussed previously, OGIS regularly comments on agency FOIA regulations; we also work informally with agencies as they develop proposed updates.

Over the last year, four of the 15 cabinet-level agencies issued or proposed new FOIA regulations. Some of our eagle-eyed readers might have also seen that a component of the Department of Homeland Security (DHS), Customs and Border Protection (CBP), issued an update to its FOIA regulations earlier this week. For a number of years, CBP has operated under DHS’s FOIA regulations—and it will continue to do so; the update published this week lays out an exception regarding CBP’s treatment of confidential business information.

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As the graphic above shows, there are variations in the four agencies’ proposals. For example, regulations for the Departments of State, Justice, and Homeland Security echo Department of Justice (DOJ) Guidance that language referencing OGIS’s mediation services be included in the agency’s appeals response letter. The updated regulations also provide varying deadlines for requesters to submit appeals and minimum fees that the agency will charge.

So, how long will it be before these proposed changes will be in effect? DOJ’s new regulations are in effect now, but the date that the other proposals are finalized and take effect depends on a number of factors. Notices of proposed rulemaking in the Federal Register are often preceded by months or even years of internal discussion. Once the proposed rule is published, the agency accepts comments on its proposal for a specific number of days—generally between 30 and 180 days. The agency then responds to the comments and makes any necessary changes to its regulation. The amount of time between the end of the comment period and the issuance of the final rule depends on a number of factors, including the number and nature of comments the agency received.

As you may have surmised, public comment is an important part of the regulation review process. If you want to stay up to date with newly announced proposed FOIA regulations, one easy way to do so is to subscribe to the Federal Register and set your preferences to alert you to terms like “FOIA” and “Freedom of Information Act.” This will ensure that you never miss a chance to make your voice heard as new regulations are proposed.

If you have any questions or comments about an agency’s FOIA regulation, or about the regulations update process, let us know in the comments section!

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