Open, Accountable Government
New Report Recommends Best Practices for Executive Agency Freedom of Information Act Regulations
by Elizabeth Hempowicz, 12/9/2013
Americans deserve easy access to public information. For that to happen, executive agencies need effective procedures for responding to requests for information under the Freedom of Information Act (FOIA). Although several agencies have adopted some good practices, most agency FOIA regulations are outdated and unfriendly to the public. To encourage agencies to improve their FOIA procedures, a goal under the president's 2nd National Action Plan on Open Government, the Center for Effective Government released a new report on Dec. 9, Best Practices for Agency Freedom of Information Act Regulations.
Under the Freedom of Information Act, anyone can request information from a federal agency, which is supposed to promptly provide the information requested unless it is specifically exempted by law. However, each agency adopts its own rules for responding to FOIA requests. These rules and practices can vary widely and either facilitate or prevent the public’s access to information under FOIA.
Our new report includes recommendations for more effective FOIA regulations, drawing on the best practices in operation today, and includes model language. The recommendations cover topics such as improving communications with requesters, providing simple procedures for appealing FOIA decisions, and proactively disclosing information in advance of any FOIA request. If implemented, the recommendations would make the FOIA process more predictable and straightforward for the American people and increase the disclosure of public information.
Why FOIA Rules Are Important
While FOIA creates a right for citizens to access government information, the practical application of the law varies between agencies. There is no uniform FOIA regulation, so agency-specific rules are at the heart of FOIA implementation. These rules serve as the agency “how-to” guide for handling FOIA requests.
Agencies can use FOIA regulations to adopt leading practices in order to become more open and transparent. Presently, however, many agency regulations aren’t even up to date with the current law.
Additionally, the differences between agencies’ FOIA regulations can be confusing for those requesting information. For example, some agencies allow electronic submission of requests, while others require written requests. While one agency will send an acknowledgement letter when it receives a request, another agency may send no communication until it has made a determination, weeks after the original request. Creating and implementing effective agency regulations is vital to FOIA’s success as a tool for promoting transparency and access to information.
How to Improve FOIA Regulations
The report addresses eight key areas where agencies can increase transparency by adopting best practices in their FOIA regulations:
- Expand proactive online disclosures to make information more easily accessible.
- Use the Internet to respond to requests more efficiently by allowing requesters to submit requests and appeals online, providing online tracking, and using e-mail as a default way of communicating.
- Acknowledge and track requests by promptly noting that they have received requests and making it easy to view the progress of a request.
- Clearly and proactively communicate with requesters and be certain that agency staff understand what information is being requested if there is any confusion.
- Apply the presumption of disclosure, prevent the destruction of records, and adopt a foreseeable harm standard for withholding information.
- Limit and streamline confidential business information claims to ensure that these claims are reasonable and are not being abused to withhold or delay access to information that should be public.
- Adopt clear fee procedures so requesters understand the potential costs of fulfilling a FOIA request and how they can avoid such fees.
- Improve administrative appeals and methods of resolving disputes with requesters.
Adopting these recommendations would reinforce the commitment to transparency that President Obama promised when he took office and when he recently issued the 2nd National Action Plan on Open Government under the international Open Government Partnership. While the recommendations are not an exhaustive list of all the changes necessary to bring agency FOIA implementation up to date, they can be a starting point for reform.
The report also raises three necessary best practices that have yet to be clearly established or widely implemented: making fee assessments fair and timely, avoiding inappropriate administrative closure of requests, and avoiding the inappropriate application of exemptions. In the spirit of cooperation and transparency, the report calls for input from agencies, those requesting information, and FOIA leaders on these underdeveloped best practice areas.
Next Steps toward Better FOIA Implementation
The report highlights agencies that meet the best practice standards and offers concrete suggestions to those agencies that have not yet adopted such standards. Through the recommendations, model language, and implementation language, the report aims to help bring FOIA regulations up to date and contribute to a transparent and user-friendly FOIA system. This report can also serve as a model for the upcoming common FOIA regulations under the National Action Plan. The report’s best practices can be used as benchmarks to gauge agency progress, as well as the strength of the regulations adopted agency by agency.
Gavin Baker contributed to this article.