Financial Stability Oversight Council FOIA Rules Show Progress
Apr 19, 2012
Last week, the Financial Stability Oversight Council (FSOC) issued regulations to implement the Freedom of Information Act (FOIA) at the agency. The council was created by the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act to monitor risks to the nation's financial system.
The rule incorporates important changes from the proposed regulations issued last year. Several of the revisions reflect recommendations that OMB Watch and others offered to further the cause of transparency and government openness.
Requests Can be Submitted Electronically
The original proposal appeared to require that all FOIA requests and appeals be submitted by mail. In our comments, OMB Watch recommended that FSOC also allow for FOIA requests and appeals to be made online. Accepting online requests can improve responsiveness by adding convenient options for requesters and could also save agency costs for data entry. Public Citizen and the Project On Government Oversight, along with the Office of Government Information Services (OGIS), made similar points in their comments.
In response, FSOC changed the regulations to clearly permit FOIA requests to be submitted online. The agency noted that initially it will accept requests through a web form, but in the future, it intends to accept requests via e-mail, as well.
More Flexible Requirements for Requesters
The original proposal appeared to allow FSOC to reject FOIA requests if they were technically deficient in any way, such as failing to include all the required information in the initial request letter. As originally proposed, such a denial would not be subject to appeal, and FSOC would not even have to inform the requester.
In our comments, OMB Watch recommended that FSOC adopt more flexible requirements for requesters. We reminded the agency of President Obama's FOIA memo, which called on agencies to "act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public." Overly strict technical requirements could unduly frustrate public access and would not advance that "spirit of cooperation." This issue was also raised in comments from OGIS, Public Citizen, the Project On Government Oversight, and Better Markets.
In its rule, FSOC listened to these suggestions by allowing for greater latitude during the FOIA process. Under the new rules, the agency will not deny requesters information simply because they had one or more technical deficiencies in their submission. In addition, FSOC will notify requesters of any errors before rejecting their request. This will streamline processing without imposing unnecessary burdens on requesters.
Some Progress for Online Disclosures
FOIA has always required agencies to proactively publish information, as well as provide records to the public upon request. A 21st century FOIA system would expand those proactive disclosures and bring them online for efficient public access. Unfortunately, the FSOC only partially accepted our recommendations for strengthening online disclosure.
Under E-FOIA, agencies are required to provide online access to information that has been released due to a FOIA request and is likely to be solicited again in the future. Posting those records is a key way to expand transparency while reducing duplicative requests. However, FSOC's proposal would have restricted such posting only to information “clearly of interest to the public at large.” That condition doesn't appear in the law, and it's unclear how an agency would make such a determination.
OMB Watch, along with Public Citizen and the Project On Government Oversight, recommended this condition be removed to promote transparency and fully reflect the statutory decree. In the rule, FSOC adopted our recommendation and returned to the statutory language.
Unfortunately, FSOC declined to adopt our other recommendations to:
- Post online all records released through a FOIA request
- Include procedures for proactively disclosing information in advance of receiving a FOIA request
- Routinely disclose particular information, including the calendars and travel records of top agency officials
Although FSOC did not include these recommendations in its regulations, we hope it will consider putting them into practice nonetheless. OMB Watch would like to see further improvements that promote government openness by proactively providing information to citizens even without an official request. Many of these recommendations are already included in the best practices chart prepared by the Office of Government Information Services, the government's FOIA ombudsman. What's left is simply for agencies to adopt those practices.back to Blog