Study finds more than half of federal agencies' FOIA rules do not meet legal requirements

Lilly Chapa | Freedom of Information | News | December 4, 2012

More than 60 percent of federal agencies have not responded to calls by Congress or President Barack Obama to update their Freedom of Information Act regulations, according to a National Security Archive report released today.

Out of the 99 agencies the Archive audited, 56 have not updated their FOIA guidelines to meet the requirements of the OPEN Government Act of 2007, which overhauled the FOIA system by mandating that agencies reform their fee structures, institute request tracking numbers and publish specific data on their responses to records requests.

"The Archive's audit also found that 17 agencies did not properly post their regulations on their FOIA websites, as required by the Electronic FOIA Amendments of 1996," the audit stated. "The National Security Archive sent FOIA requests to these 17 derelict agencies requesting copies of their FOIA regulations, but after three months only seven have responded; the law requires that agencies respond within 20 business days."

Lauren Harper, a research assistant at the Archive, said she’s not surprised by the large number of agencies with outdated FOIA regulations. She said that many agencies, particularly the smaller ones, say they suffer from a lack of resources when it comes to their FOIA work. “They say that they don’t have anyone to update their regulations, and maybe that’s the general feeling around the government,” she added.

The Department of Justice recently received the Archive's award for worst open government performance by a federal agency for attempting to sneak through regulations that would allow lying to FOIA requesters, exempting online publications from being considered news media and disqualifying most students from receiving FOIA fee waivers, according to the audit.

When President Obama took office in 2009, he called upon the agencies to improve their open records management and create a more transparent government. Three months later, U.S. Attorney General Eric Holder issued a memorandum to the federal agencies detailing best practices for FOIA guidelines. But since then, only 13 agencies made concrete changes to their FOIA systems during Obama’s first year of presidency, according to the report.

In 2010, the White House issued a strongly-worded memorandum demanding that agencies update all FOIA material, but at the end of Obama’s second year as president, only 49 agencies had updated their regulations.

"Outdated agency regulations really mean there's an opportunity here for a second-term Obama to standardize best practices and bring all the agencies up to his day-one openness pledge," said Archive Director Tom Blanton in a statement.

The problem is that Congress and the president cannot agree on guidelines to compel or punish defying agencies, according to the report.

The Archive began requesting federal agencies’ FOIA regulations after discovering one agency’s rules were outdated, Harper said. It made members of the organization wonder whether other agencies' regulations were outdated as well.

“It was really remarkable how difficult it was to find these agencies’ regulations,” Harper said. “It was hard for us, so it’s really unduly cumbersome for the average requester to find.”

The oldest agency FOIA regulations belong to the Federal Trade Commission, which last updated them in 1975.