The Freedom of Information Act (FOIA) provides a statutory right of access to federal agency records. The statute sets forth various requirements for agencies to follow in providing that access, including providing descriptions of the types of records that agencies are required to disclose proactively, as well as the exemptions from required disclosure. The FOIA also establishes different procedures or practices that agencies must follow when responding to requests for records, such as providing estimated dates of completion, marking documents with any applicable exemptions, and routing misdirected requests.
While many of the FOIA’s requirements are contained directly in the statute itself and do not need implementing regulations, there are a few areas where the FOIA specifically requires each agency to publish regulations and other areas where the FOIA permits regulations. Moreover, there are other aspects of FOIA administration that can be addressed in regulations as a matter of good practice. Each agency subject to the FOIA publishes its own set of FOIA regulations.
This guidance was originally issued on March 23, 2016 and is now updated to incorporate the new requirements found in the FOIA Improvement Act of 2016 (Pub. L. No. 114-185).
Commitment to Determine Feasibility and Content of Potential “Core” FOIA Regulation
As part of the Second United States Open Government National Action Plan the Administration committed to initiating “an interagency process to determine the feasibility and the potential content of a core FOIA regulation that is both applicable to all agencies and retains flexibility for agency-specific requirements.” The goal of this initiative was to create as much uniformity as is practical and feasible in the content of agency FOIA regulations. The Office of Information Policy (OIP) at the Department of Justice convened an inter-agency working group to study this issue. Over the course of two years, the group engaged with members of requester organizations and reviewed their suggested model language. After much consideration the working group ultimately determined that the most feasible approach to maximizing consistency across agency FOIA regulations, while also allowing for agency-specific requirements, was to develop a template with suggested language that all agencies can use as they publish or update their FOIA regulations. OIP has created this guidance to accompany and supplement the template. Agencies should review their existing regulations and if updating is needed, they should follow this template as closely as possible.
FOIA’s Statutory Provisions That Reference Regulations
At the heart of the FOIA is the requirement for agencies to make records available upon request. Specifically, in addition to making certain categories of agency records available proactively, the FOIA requires agencies to make records promptly available whenever they receive a request which reasonably describes the records being sought, and is made “in accordance with published rules stating the time, place, fees (if any) and procedures to be followed.” 5 U.S.C. § 552 (a)(3)(A) (2014), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538. Thus, the FOIA establishes a core requirement for all agencies to establish published rules concerning how and where the public can make requests for records.
In addition to setting up the logistical requirements for making requests, the FOIA also requires each agency to promulgate regulations addressing fees and expedited processing, id. § 552 (a)(4)(A)(i) and (a)(6)(E)(i), and provides suggestions for other areas which agencies “may” wish to address by way of regulation, such as establishing multiple processing tracks, id. § 552 (a)(6)(D)(i).
Beyond complying with these required and suggested statutory provisions, agency FOIA regulations can also play a vital role in establishing good customer service practices, promoting efficiency, and providing greater clarity about the FOIA process to the public.
Required Provisions for Agency FOIA Regulations
Time and place to make requests
As mentioned above, the FOIA provides that agencies are required to respond to requests for access to records that are reasonably described, providing such requests are made according to the agency’s published rules stating “the time, place, fees (if any), and procedures” for making requests. Id. § 552 (a)(3)(A)(ii). Thus, at a minimum, agency FOIA regulations must indicate where requesters should submit their requests. The designation of office(s) to receive requests will also facilitate the routing of any misdirected requests. Id. § 552 (a)(6)(A)(ii). As described below, agency regulations are required to establish a schedule of fees. Agencies must also include any other “procedures” for making requests. These could include references to how requesters should submit their requests (by mail, email, through an online portal, etc.), what type of contact information is needed, and any other information (such as a case number) that the requester should provide. Finally, the regulations should note any special requirements for requesters seeking records on themselves or other individuals, such as providing a certification of identity form. As shown in the FOIA regulation template, agencies are also encouraged to include customer service provisions such as including a brief description of the request topic in the acknowledgment.
Schedule of fees and procedures and guidelines for waiver of fees
The FOIA also requires agencies to include in their regulations a fee schedule and procedures for determining when fees should be waived or reduced. Id. § 552 (a)(4)(A)(i). The fee schedule is required to conform with OMB’s Fee Guidelines. Id.; see 52 Fed. Reg. 10,017 (Mar. 27, 1987). There are numerous specific fee provisions that must be included in agency FOIA regulations, such as providing “for the first two hours of search time or the first one hundred pages of duplication” for non-commercial use requesters. 5 U.S.C. § 552 (a)(4)(A)(iv)(II). Agency regulations must also explain how requesters can seek fee waivers and the guidelines for how the agency will analyze fee waiver requests. Id. § 552 (a)(4)(A)(i). Additionally, the OMB Fee Guidelines require that agencies give notice in their regulations that they may charge for search time even if no records are located or the records located are exempt from disclosure. 52 Fed. Reg. 10,019 (March 27, 1987).
Agencies must also include provisions in their regulations concerning expedited processing of requests in instances in which the requester demonstrates a "compelling need" as defined by the FOIA or in any other circumstances as determined by the agency and set forth in its regulations. 5 U.S.C. § 552(a)(6)(E). The FOIA requires that these regulatory provisions "ensure that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request." Id. § 552 (a)(6)(E)(ii). Agency regulations must also ensure "expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing." Id.
Notification to submitters of confidential commercial information
Additionally, while not required by the FOIA itself, Executive Order 12,600 requires that agencies subject to the FOIA "establish procedures to notify submitters of records containing confidential commercial information . . . when those records are requested" under the FOIA, if the agency "determines that it may be required to disclose the records." Exec. Order. No. 12,600, 3 C.F.R. § 235 (1988). Executive Order 12,600 sets out procedures for notifying submitters of information that "arguably contain[s] material exempt from release under Exemption 4" of the FOIA. Section 7 of the executive order requires agencies to include conforming procedures in their own regulations.
Procedures for Dispute Resolution
Section 3 of the FOIA Improvement Act of 2016 requires agencies to include in their regulations procedures for dispute resolution with their FOIA Public Liaison and the National Archives and Records Administration’s (NARA) Office of Government Information Services (OGIS). Throughout the FOIA process, agencies are required to provide notice of services provided by their FOIA Public Liaison and the dispute resolutions services provided by OGIS. Agencies may reiterate these statutory requirements in their regulations. Additionally, agencies may express their intention to actively engage whenever the agency participates in the dispute resolution services offered by OGIS.
Optional Regulatory Provisions
The FOIA states that agencies "may" provide in their regulations for multitrack processing "based on the amount of work or time (or both) involved in processing requests." 5 U.S.C. § 552(a)(6)(D)(i). For agencies that establish multi-track processing, the regulations may provide requesters who do not qualify for the fastest track an opportunity to limit the scope of their request in order to qualify for a faster processing track. Id. § 552(a)(6)(D)(ii). OIP strongly encourages agencies to establish multiple processing tracks and has emphasized the importance of focusing processing efforts on "simple" track requests, with the goal of processing such requests within an average of twenty-working days to provide requesters with a real incentive to tailor their requests for faster processing time. See OIP Guidance for Further Improvement from the 2012 Chief FOIA Officer Report Review and Assessment (August 7, 2012); OIP Guidance for Further Improvement Based on 2013 Chief FOIA Officer Report Review and Assessment (August 13, 2013).
The FOIA also provides that agencies "may" promulgate regulations "providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters." Id. § 552(a)(6)(B)(iv).
Although the FOIA requires or provides for agencies to promulgate regulations on the specific topics described above, it does not specifically require regulatory provisions for many other aspects of FOIA administration. In some areas, such as providing records in any form or format requested if the record is readily reproducible by the agency in that form or format, the text of the FOIA often will suffice and there is no need to further address the point in regulations. 5 U.S.C. § 552 (a)(3)(B). In other areas, however, it makes sense to include additional regulatory provisions. For example, while the FOIA requires agencies to give requesters an opportunity to administratively appeal denials of their requests, the statute does not explicitly require agencies to specify appeal procedures in their regulations. Id. § 552(a)(6)(A)(i). Nevertheless, including appeal procedures in regulations ensures that agency personnel and requesters understand how and where to make their appeal and what to expect from the appeal process. The FOIA Improvement Act of 2016 requires agencies to afford requesters a minimum of 90 days to file an administrative appeal.
Additionally, agencies may choose to include provisions that emphasize certain statutory requirements, such as the requirement to route misdirected requests within decentralized agencies, or the requirement to provide notice of dispute resolution services provided by FOIA Public Liaisons or OGIS at various points in the request process. Doing so helps reinforce the requirements and promotes greater familiarity with them. Agencies may also go beyond the statutory requirements by including regulatory provisions pertaining to agency policies and procedures on topics such as proactive disclosures, the responsibilities of FOIA Public Liaisons, and the presumption of openness. For example, OIP encourages agencies to include provisions specifying that they will communicate electronically with requesters as a default if that is the requester’s preferred means of communication. OIP also encourages agencies to make their FOIA Public Liaison available to requesters to assist them in formulating their request or locating documents that the agency has already proactively disclosed. By including such provisions, agencies can formalize best practices, strengthen quality customer service, and further promote open government.
Template for Agency FOIA Regulations
To assist agencies and encourage consistency in FOIA practices across the government, OIP has created a FOIA regulation template for agencies to use as they publish and update their regulations. The template identifies key items to include and provides sample regulation language. At the beginning of each section, OIP has included guidelines that summarize the key elements to be addressed. Some guidelines are labeled as "Customer Service," to designate provisions that agencies are encouraged to include to promote good FOIA customer service. There are some provisions that restate requirements detailed in the FOIA or in OMB Fee Guidelines and those are flagged as "Included for emphasis." Finally, some items are noted as providing "Helpful explanation" for agencies and the public. All agencies should consult the template as they review and update their FOIA regulations.