Justice Department to Revise its FOIA Regulations

The Department of Justice (DOJ) has proposed to update its regulations implementing the Freedom of Information Act (FOIA). The regulations would apply to DOJ and its components, such as the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA).

Department of Justice seal

Each agency subject to FOIA adopts regulations to describe its procedures under the law. These regulations are an important tool to help requesters understand their rights and responsibilities when seeking information from an agency. Therefore, it's valuable for agencies to keep their regulations updated to reflect changes in the law or the agency. Additionally, to the extent that agencies have discretion under the statute, it's important that they exercise that discretion in service of openness.

OMB Watch filed comments yesterday on the proposed regulations, which focus on three aspects of the proposal.

First, we note appreciatively the greater emphasis on proactively disclosing information online, rather than waiting for a FOIA request. We call for DOJ to go even further and post all its responses to FOIA requests online.

Second, we call attention to a provision of the proposed regulations that seems to deviate from the law. Under FOIA, if a requester asks for certain law enforcement, intelligence, or terrorism records, the agency can deny that the records exist. The regulations go further, though, and say that DOJ will deny that the records exist.

That would be a step backward. Even if an agency thought, after a careful consideration and balancing, that the records should be released, the new regulations seem to tell the agency to keep them hidden. In fact, Attorney General Eric Holder's 2009 FOIA memo directs agencies not to do exactly this: don't withhold records simply on a technicality – you need to have a good reason for doing so. DOJ should take its own advice and restore the flexibility to release records where it makes sense.

Finally, we object to some of the fee increases proposed by DOJ. While some changes would helpfully reduce the fees charged to requesters, they could be outweighed by other increases. In particular, the proposal changes the fee structure for staff time spent searching for and reviewing records in response to a request. In some cases, the fees would increase by $36 per hour – an increase of 225 percent over their previous levels. These fees are way out of line with what other agencies charge. DOJ has some explaining to do.

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