Model FOIA Regulations Being Drafted in United States

30 May 2014

By Lauren Harper

This article was published in Unredacted, a blog of the National Security archive, with which FreedomInfo.org is affiliated. Harper is an NSA staff member.

The National Security Archive has partnered with our colleagues at the Citizens for Responsibility and Ethics in Washington (CREW), and the Electronic Privacy Information Center (EPIC), to publish a set of model Freedom of Information Act (FOIA) regulations. These model regulations will set the transparency benchmark when the Department of Justice’s Office of Information Policy begins the review process to determine the potential content of “a core FOIA regulation and common set of practices” to be used across the government on May 29th.

While FOIA regulations are the principal tool agencies use to process their FOIA requests, nearly half (50 out of 101) of all federal agencies have not updated their FOIA regulations to comply with Congress’s 2007 FOIA amendments, many regulations are difficult to find, and FOIA processes differ greatly across the 101 federal agencies, “making it difficult for information-seekers to navigate red tape.”

The model FOIA regulations drafted by CREW, EPIC, and the Archive, will help standardize these disparate, and often outdated, FOIA processes along best practice guidelines.

CREW’s policy director, Daniel Schuman, has a great post on the newly published model regulations, which include:

o        Protecting media access by treating an online-only news organization as a “representative of the news media” and thereby qualifying for a FOIA fee waiver.

o        Saving taxpayer resources by encouraging agencies to post documents released through the FOIA process online.

o        Providing agencies with a concrete process for applying the oft-abused “pre-decisional” Exemption 5 by including a public interest balancing test and limiting the exemption’s use to documents created less than 12 years ago.

o        Making disclosure the default by formalizing the president’s directive for an agency to release information in response to a request except when the agency clearly identifies specific, foreseeable harm arising from the disclosure.

o        Reducing unnecessary secrecy by requiring agencies to review classified documents that are the subject of a FOIA request to see whether they now can be disclosed.

o        Ending the paper chase by allowing agencies to avoid unnecessary consultations through the use of inter-agency agreements.

o        Managing expectations around FOIA appeals by setting a uniform 60-day deadline.

o        Encouraging dispute mediation by informing the public that the Office of Government Information Services can help settle disputes.

o        Reducing disputes over fees by clarifying several issues.

o        Applying the law on fees so agencies do what Congress intended.

Take a look at the complete model regulations here.

 

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