A coalition of transparency organizations set a new benchmark for transparency by publishing model Freedom of Information Act (FOIA) regulations, building on FOIA's 50-year legacy of making government more open and accountable. The groups—Citizens for Responsibility and Ethics in Washington (CREW), the Electronic Privacy Information Center (EPIC), and the National Security Archive—all experts in FOIA litigation, recommend a common set of practices to ensure agencies protect the public's right to know. The recommendations, initially released in May 2014, were updated in July 2014.
The Freedom of Information Act is a critical tool to shine a light on the inner workings of government. Unfortunately, FOIA processes at federal agencies differ greatly from one another, making it difficult for information-seekers to navigate red tape. These model regulations will help standardize these processes and improve citizens’ ability to see behind the scenes in Washington.
The recommendations are timely. On the legislative side, the House of Representatives recently passed legislation to improve FOIA and the Senate is considering a significant overhaul. In the executive, as part of the White House's December 2013 National Action Plan, the president committed to create "a core FOIA regulation and common set of practices," a responsibility that will fall on the Department of Justice's Office of Information Policy.
The administration review will begin on May 29th. The coalition proposal sets a standard against which the results of the administration's review will be judged.
Provisions of the coalition's recommendation to improve FOIA draw on best practices among the agencies, and include:
- 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.
- Saving taxpayer resources by encouraging agencies to post documents released through the FOIA process online. .
- 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.
- 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.
- 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.
- Ending the paper chase by allowing agencies to avoid unnecessary consultations through the use of inter-agency agreements.
- Managing expectations around FOIA appeals by setting a uniform 60-day deadline.
- Encouraging dispute mediation by informing the public that the Office of Government Information Services can help settle disputes.
- Reducing disputes over fees by clarifying several issues.
- Applying the law on fees so agencies do what Congress intended.
The model regulations are available here. This explainer is also available as DOCX and PDF files.