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Washington, DC, March, 2013 – 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:
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:
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.
Are Agency FOIA Regulations up to Date with FOIA Improvements?
Agencies highlighted in GREEN have updated their FOIA regulations since the passing of the Open Government Act on December 31, 2007. Agencies highlighted in RED have not updated their FOIA regulations since the passage of the act. Agencies highlighted in DARK RED have no FOIA regulations.