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Majority of Agencies Have Fallen Behind on Updating FOIA Rules

Survey finds that just over a third have responded to new law.

This story has been updated with comment from the Justice Department's Office of Information Policy,   

Nine months after President Obama signed a major reform of the Freedom of Information Act, a new survey shows that only 38 of 99 agencies have updated their rules,  according to the private nonprofit National Security Archive.

This lapse could harm transparency, the group said in its 16th such survey since 2002, noting that the 2016 FOIA Improvement Act required agencies to update their internal FOIA regulations within 180 days—making the deadline last Dec. 27.

“Because 61 agencies have not updated their FOIA regulations, many requesters may still be charged improper FOIA fees if an agency misses a deadline, could be unaware of the mediation services available to them and are being robbed of their rightful appeals deadlines,” said archives analysts Lauren Harper, Nate Jones and Tom Blanton in a release timed for the annual Sunshine Week.

Among the new law’s requirements are giving those seeking information at least 90 days to file appeals of denied requests, not charging inappropriate duplication fees and informing requesters of their rights to advice from agency or governmentwide FOIA ombudsman offices.  Justice Department Office of Information Policy director Melanie Ann Pustay had testified before the law was enacted that such updates were seen as optional.

The departments behind on rule updates include State, Commerce, Treasury, Agriculture, Veterans Affairs and Education, the survey found. Those with the best compliance records are the Interior, Homeland Security and Energy departments. A third group updated most rules but failed to add the extended deadline for appeals. This group included the Office of Special Counsel, the Small Business Administration and the U.S. Copyright Office.

Some 27 agencies went beyond the requirements and provided an easy email address for submissions, the survey found.

The FOIA appeals process is important because a large portion of appeals secure a change in what documents get released, analysts said. In fiscal 2015 alone, by their calculation, “the government potentially improperly withheld information in over 115,000 FOIA requests – and potentially millions of pages of documents that should have been released were not.”  

The analysts criticized the Office of Information Policy at Justice for “clearly failing in its mandate to oversee FOIA compliance throughout the federal government.”

That office on Monday conducted its own marking of Sunshine Week with a special meeting of the department’s FOIA IT Working Group, at which awards were given to FOIA professionals from around the government. 

“Since passage of the FOIA Improvement Act of 2016 the Office of Information Policy has engaged in a wide range of activities to inform and advise agencies of their obligations under the new statutory provisions," said Pustay, in a statement to Government Executive. "This guidance and training has addressed the requirement that agencies review and update their FOIA regulations. To further assist agencies in updating their FOIA regulations OIP issued an updated version of its guidance on the content of agency FOIA regulations, along with an updated template of sample regulation language. OIP will continue its ongoing efforts to advise and guide agencies in all aspects of administering the FOIA.”