Finding Agency FOIA Regulations a Shockingly Difficult Task

Today the National Security Archive published its latest Freedom of Information Act audit to assess which agencies have best followed the FOIA. The audit highlights outdated agency FOIA regulations (the principal tool agencies use to process their FOIA requests) government-wide, and made the  disheartening discovery that fifty-six out of ninety-nine government agencies have not updated their regulations since the most recent amendment to the FOIA. Along with being outdated, formatting inconsistencies, broken links, and in one case a complete lack of regulations, made tracking down each agency’s latest FOIA regulations unduly cumbersome.

The FOIA has been updated six times since it was signed into law in 1966, and we wanted to see which agencies have amended their FOIA regulations to reflect the most recent update, the OPEN Government Act of 2007, which mandated that agencies reform their fee structures, institute request tracking numbers, publish data on their FOIA output, and cooperate with the Office of Government Information Services.

To determine which agencies had updated their regulations to follow the 2007 amendment, we visited each agency’s electronic FOIA page, which every federal agency is mandated to maintain by the Electronic Freedom of Information Act of 1996 5 U.S.C. § 552. Troublingly, we were struck that finding each agency’s current FOIA regulations was not a straightforward task. Federal agencies are required to provide a digital annual FOIA report on their website, which in turn must provide agency FOIA regulations. However, it became apparent that there is no uniformity in the way FOIA regulations are posted on these agency websites, sometimes resulting in out-of-date regulations being posted, or regulations that are nearly impossible to find.

Unfortunately, many agencies place an undue burden upon requesters trying to locate FOIA regulations, by linking only to pdf or plain-text versions of the regulations, which does not guarantee they are up-to-date. Others provide only a link to their fiscal year FOIA reports required by the Department of Justice, which – while meeting the bare minimum legal requirements – forces requesters to comb through hundreds of pages of reports to find the location of the regulations.

The only foolproof way to ensure we had the most up-to-date information for our audit was by finding each agency’s Code of Federal Register (CFR) citation number, and locating their corresponding Freedom of Information Act regulations within the eCFR. We then read through each set of regulations to determine when they were last updated.

An ideal situation would be for agency pages and FOIA.gov to post hyperlinks to the eCFR that correspond to their FOIA regulations on their main FOIA page. The Federal Communications Commission and Department of Transportation currently do this, and it is the best solution to ensure that the regulations posted are up to date and easily found.  Many agencies also post their links to the eCFR prominently in their Electronic Reading Rooms.

Finally, after compiling and cross-referencing both the FOIA regulations posted in the eCFR and the information available on agency websites, in August we submitted 18 FOIA requests to the agencies whose regulations were the most out-of-date and difficult to locate. Only nine agencies have responded; one, the United States Trade and Development Agency, informed us that the reason we were having trouble locating their regulations was because they didn’t – believe it or not – have any.

The Federal Reserve System, the National Transportation and Safety Board, the Export-Import Bank, the Corporation for National and Community Service, the Agency for International Development, the U.S. International Boundary and Water Commission, the Institute of Museum and Library Services, the National Capital Planning Commission, and the Office of Navajo and Hopi Indian Relocation have not yet replied to our FOIA requests for copies of their regulations governing FOIA.