Agencies Will Revise Their FOIA Regulations (...Or Not)

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 In fact, several of the rulemakings will need to be revised or withdrawn because the law has changed since they were started.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.)

New rulemakings
Agency RIN Status
CNCS 3045-AA59 Interim Final Rule expected 06/00/2011
EEOC 3046-AA90 NPRM expected 12/00/2011
FSOC 4030-AA02 NPRM 03/28/2011, Final Rule expected 07/00/2011
NSF 3145-AA55 Direct Final Rule expected TBD (long term)
" 3145-AA56 Direct Final Rule expected TBD (long term)
State Department 1400-AC76 NPRM expected 06/00/2011
Continued rulemakings
Agency RIN Status
DHS 1601-AA00 Interim Final Rule 01/27/2003, NPRM expected 09/00/2011
DOD 0790-AI32 NPRM expected 07/00/2011
" 0790-AI24 NPRM 12/19/2007, Final Action expected 06/00/2011
" 0790-AI29 NPRM 10/09/2008, Final Action expected 06/00/2011
" 0790-AG76 Interim Final Rule 03/16/2000, Final Action TBD (long term)
DOE 1901-AA32 NPRM 12/09/2008, Final Action expected 06/00/2011
DOJ 1105-AB27 NPRM 03/21/2011, Final Action expected 12/00/2011
DOT 2105-AD99 NPRM 12/27/2010
FMCS 3076-AA06 NPRM 11/03/1999, Final Action expected 12/00/2011
NEH 3136-AA27 NPRM expected 12/00/2011
OPM 3206-AK53 NPRM 07/24/2008, Final Action expected 12/00/2011

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