FOIA Improvement: Improving Agency FOIA Regulations

Note: This entry is another in our series of occasional blog posts updating our efforts to implement new provisions of the Freedom of Information Act (FOIA) signed into law by President Obama on June 30, 2016.

Regular readers of the Federal Register may have noticed a recent spike in notices related to amendments of agency FOIA regulations. This increase is due to agencies hurrying to update FOIA regulations before the end of calendar year 2016, as directed by the FOIA Improvement Act of 2016.

In addition to requiring that agencies update their FOIA regulations to reflect the FOIA Improvement Act’s changes, Congress also required that the updated regulations “include procedures for engaging in dispute resolution services through the FOIA Public Liaison and the Office of Government Information Services.” We have reviewed many updated FOIA regulations since the FOIA Improvement Act of 2016 was passed. While many of them include language regarding the availability of dispute resolution services – either via the FOIA Public Liaison or OGIS, we have seen an increasing number of revised regulations that do not reference OGIS’s dispute resolution services as a non-exclusive alternative to litigation in the administrative appeals section of their regulations.  Neither the FOIA statute nor the 2016 amendments explicitly compel agencies to do so.  Nevertheless, OGIS has made this recommendation to all agencies as a best practice, consistent with guidance from the Department of Justice (DOJ).

As we have previously explained, the FOIA Improvement Act expands OGIS’s role in the FOIA process. Congress now requires that agencies alert requesters of our dispute resolution services at two distinct points in the FOIA process—first, when the agency makes an adverse initial determination, and second if the agency needs more than ten (10) additional days to process a request in the case of “unusual circumstances.” (The law defines “unusual circumstances” as the need to search for and collect records from field offices, the need to search, collect and review a voluminous amount of records, or the need to consult with another agency or multiple components within the same agency,).

Requesters should also be informed of our dispute resolution services in the agency’s final appeal response letter as an alternative to filing suit in federal court. FOIA provides the right to file a suit in a federal district court if the requester is dissatisfied with an agency’s response after the administrative appeals process has been exhausted. In 2007, Congress provided requesters with another option after the administrative appeals process by creating OGIS as a “non-exclusive alternative to litigation” (5 U.S.C. § 552(h)(3)). In light of this role, the DOJ Office of Information Policy (OIP) encourages agencies to include a standard paragraph about OGIS in their final appeal response letters; and(the appeals section of OIP’s template for agency model regulations also recommends inclusion of OGIS’s dispute resolution services.

As OGIS continues to regularly review and comment on proposed FOIA regulations and amendments, we will continue to suggest explicit reference to  OGIS in the appeals section of agency regulations. If you would like the chance to review and comment on proposed FOIA regulations, you may wish to subscribe to the Federal Register and set up alerts for 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.