The Spring 2011 Unified Agenda was released today, reporting agencies' regulatory changes to be considered in the next six months. According to the Unified Agenda, several agencies intend to revise their Freedom of Information Act (FOIA) regulations this year, but there are reasons to take that with a grain of salt.

First, it's incomplete. Under Executive Order 12866, agencies do not have to list rules "that are limited to agency organization, management, or personnel matters" in the Unified Agenda. As a result, some agencies list revisions to their FOIA regulations in the Unified Agenda, while others do not.

Even for regulations included, being listed isn't a surefire indicator that agencies will act. As Office of Information and Regulatory Affairs (OIRA) administrator Cass Sunstein wrote in a memo to agencies on preparing their Unified Agenda submissions, "In recent years, a large number of Unified Agenda entries have been for regulatory actions for which no real activity is expected within the coming year." This certainly seems to be the case for FOIA regulations, some of which have been repeatedly listed in the Unified Agenda for years.

Nevertheless, the Unified Agenda provides a unique, if limited, view into the operation of the FOIA. Maybe the most interesting facet of the listed FOIA regulations is how old they are. Several agencies have yet to finalize revisions begun years ago. The oldest listed pending rulemaking was opened in 1999!

These lengthy delays are problematic. As we wrote about the recent proposed revisions to the Justice Department's FOIA regulations, "[FOIA] 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." In fact, several of the rulemakings will need to be revised or withdrawn because the law has changed since they were started.

But maybe these agencies should at least get credit for trying. For instance, the Department of Health and Human Services (HHS) hasn't updated its FOIA regulations since 1988! (HHS published a proposed revision in 1999, but never issued a final rule.)