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National Security Archive Audit Sheds Light on Best Practice FOIA Regulations this Sunshine Week

March 18, 2014

While the federal government’s top FOIA officer, the Department of Justice’s Melanie Pustay, paraded rosy –and misleading– FOIA statistics before the Senate Judiciary Committee yet again this year, the Archive’s latest FOIA audit paints a different picture.

This Sunshine Week, the Archive is reporting that nearly half (50 out of 101) of all federal agencies have still not updated their FOIA regulations to comply with Congress’s 2007 FOIA amendments, and even more agencies (55 of 101) have FOIA regulations that predate and ignore President Obama’s and Attorney General Holder’s 2009 guidance for a “presumption of disclosure.”

Congress amended the Freedom of Information Act in 2007 to prohibit agencies from charging processing fees if they missed their response deadlines, to include new online journalists in the fee waiver category for the media, to order agencies to cooperate with the new FOIA ombudsman (the Office of Government Information Services, OGIS), and to require reports of specific data on their FOIA output, among other important provisions co-authored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX). But half the government has yet to incorporate these changes in their regulations.

After President Obama’s “Day One” commitments to open government, Attorney General Eric Holder issued new FOIA guidance on March 19, 2009, declaring that agencies should adopt a “presumption of disclosure,” encourage discretionary releases if there was no foreseeable harm (even if technically covered by an exemption), proactively post the records of greatest public interest online, and remove “unnecessary bureaucratic hurdles” from the FOIA process. But five years later, the Archive found a majority of agencies have old regulations that simply ignore this guidance. In fact, during a March 11, 2014, hearing, Sen. Leahy went so far as to say he was “concerned the growing trend toward relying upon FOIA exemptions to withhold large swaths of government information is hindering the public’s right to know. It becomes too much of a temptation. If you screw up in government, just mark it top secret.”

Despite real hurdles –which should be addressed meaningfully rather than whitewashed– the Archive’s FOIA Audit also highlights some good news this Sunshine Week: namely that new plans from both the House of Representatives and the White House have the potential to compel delinquent agencies to update their regulations.

“Both Congress and the White House now recognize the problem of outdated FOIA regulations, and that is something to celebrate,” said Archive director Tom Blanton. “But new regs should not follow the Justice Department’s terrible lead, they must follow the best practices already identified by the FOIA ombuds office and FOIA experts.”

Check out the full audit here.

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