December 9, 2013

Of the 100 agencies in the federal government subject to the Freedom of Information Act (FOIA), dozens of agencies have not yet updated their FOIA regulations to reflect requirements in the OPEN Government Act of 2007. The OPEN Government Act required federal agencies to better assist people who make requests for public information under FOIA – for instance, by providing individualized tracking numbers in order to check the status of a request. Despite additional direction from President Obama and Attorney General Eric Holder to improve FOIA processing, six years later, most agency regulations include few of the best practices described below.

FOIA regulations should be easy for both requesters and agency staff to understand and should promote transparency by highlighting existing practices in federal agencies. The Obama administration has committed to developing common FOIA regulations and practices applicable to all agencies. This report is designed to be a practical guide for the administration and agency staff engaged in improving FOIA regulations and practices.

The report recommends agencies adopt the following eight best practices for agency FOIA regulations:

    I. Expand proactive online disclosures: Agencies should proactively post information on¬line to make it easily accessible, avoiding the need for FOIA requests. The Department of the Interior proactively identifies records of interest to the public and posts such records online, which increases transparency.

    II. Use the Internet to process requests more efficiently: Agencies should allow requesters to submit requests and appeals online, provide online tracking, and use e-mail as a default way of communicating. The U.S. Environmental Protection Agency allows people to sub¬mit requests by e-mail or through the agency website, which is faster than by regular mail. Agencies should use existing technology to provide more efficient service to requesters.

    III. Acknowledge and track FOIA requests promptly: Agencies should promptly acknowledge that they have received requests and make it easy to track the progress of a request. The Consumer Financial Protection Bureau provides all requesters with a tracking number in order to more easily track their requests.

    IV. Clearly and proactively communicate with requesters: Agencies should proactively communicate with requesters and be certain that agency staff understand what information is being requested if there is any confusion. The National Labor Relations Board contacts requesters before denying access. The Departments of Justice and Homeland Security notify requesters if processing will be delayed.

    V. Apply a presumption of disclosure and prevent the destruction of records: Agencies should adopt a foreseeable harm standard for withholding information. The National Archives and Records Administration requires agency reviewers to foresee specific harm from the disclosure of records, to ensure that the agency does not withhold information unnecessarily.

    VI. Limit and streamline confidential business information claims: Confidential business information claims should be narrowly interpreted to ensure that claims of confidentiality are reasonably limited. The Department of Health and Human Services requires companies with trade secrets concerns to promptly object to disclosure of claimed confidential information.

    VII. Clarify fees and waiver procedures: Agencies should adopt clear procedures for fees and fee waivers. The Department of the Interior has adopted a reasonable threshold for mini¬mum fee charges in order to prevent delays and disputes over small amounts of money.

    VIII. Improve administrative appeals and dispute resolution: Agencies should also provide adequate procedures for appealing agency decisions and resolving disputes with requesters. The Office of the U.S. Trade Representative provides 60 days for appeals to be submit¬ted to ensure that those who wish to dispute decisions are not prevented from doing so because of unreasonably short deadlines.

The report also suggests that agencies seek feedback from the requester community on proposed regulations so that requesters can identify concerns and agencies can improve their FOIA policies before finalizing them.

The report concludes with a discussion of the challenges in FOIA administration that require additional study and consultation.

Adopting effective, modern FOIA rules is a necessary and important step toward reinvigorating FOIA and ensuring American citizens have access to public information in a more timely fashion.

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