Homeland Security Department releases first FOI regs

From the Winter 2003 issue of The News Media & The Law, page 6.

In late January, the Department of Homeland Security published interim Freedom of Information Act regulations.

The regulations resemble the FOI regulations of other federal agencies, although they do not designate a departmental FOI Officer.

The rules do not address the requirements for confidentiality of “critical infrastructure” information in the new Homeland Security Act, a requirement that will protect information under Exemption 3 to the FOI Act, which allows agencies to withhold information made secret by other statutes.

Under the rules, agencies moved to the new department will continue to process FOI requests for the records they maintain.

FOI regulations appeared as “interim” rather than “proposed” rules, which means they are effective immediately, but could be revised after public comment, due February 26.

The Reporters Committee for Freedom of the Press in February will ask the department to expand the circumstances under which it will grant expedited review to include a provision, which exists in Department of Justice regulations, allowing expedited processing for requests that involve a matter of “widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.”

Like other agency FOI regulations and as required by a Reagan-era executive order, DHS’s rules provide notification procedures to allow businesses to protest release of information they have submitted to agencies when it is sought by FOI requesters.

Unfortunately, the rules allow businesses a “reasonable” time for reviewing and objecting to release of records they have submitted.

The FOI Act itself mandates that FOI officers grant or deny requests within 20 working days. It makes no provision for extending the time so that it would be “reasonable” for business submitter comments. The Reagan executive order was changed in draft form to give submitters only the time “provided by law.” Many other agencies also adopted the “reasonable” notification time despite the language of the law and order.

DHS invited requesters to address correspondence to the several agencies or parts of agencies brought into the new department.

Requesters who do not know where to direct their requests should send them to a Departmental Disclosure Officer, Department of Homeland Security, Washington, D.C. 20528, who will route them to offices where the requested records are likely to reside. — RD