30+ Years of Freedom of Information Action

Three out of Five Federal Agencies Flout New FOIA Law

Published: Mar 11, 2017

Audit compiled and written by Lauren Harper, Nate Jones, and Tom Blanton
Web publication by Rinat Bikineyev

For more information, contact Lauren Harper, Nate Jones, or Tom Blanton at 202.994.7000 or nsarchiv@gwu.edu

Only 38 of 99 Agencies Have Updated Their FOIA Rules

National Security Archive Audit Finds Outdated Regulations Hamper Transparency

Out-of-Date Rules Rob Requesters of Appeal Rights

Three out of Five Federal Agencies Flout New FOIA Law

Washington, DC, March 11, 2017 – Three out of five of all federal agencies are flouting the new law that improved the Freedom of Information Act (FOIA) and required them to update their FOIA regulations, according to the new National Security Archive FOIA Audit released today to celebrate Sunshine Week.

The National Security Archive Audit found that only 38 out of 99 federal agencies have updated their FOIA regulations in compliance with the FOIA Improvement Act of 2016 that was passed with bipartisan, bicameral support. The new law required agencies to update their FOIA regulations within 180 days of passage – that was June 30 so December 27, 2016 was the deadline.

Updated regulations were supposed to include the law’s new improvements, such as requiring agencies provide requesters with no less than 90 days to file an appeal, prohibiting agencies from charging “search or duplication fees when the agency fails to meet the notice requirements and time limits set by existing law,” and mandating agencies notify requesters of their right to seek assistance from either the agency’s FOIA Public Liaison or to seek dispute resolution services with the Office of Government Information Services (OGIS), the FOIA ombudsman.

In previous Congressional testimony, director of the Department of Justice Office of Information Policy (OIP) Melanie Pustay told lawmakers that she believed updating agency FOIA regulations to comply with updated FOIA laws or Presidential directives was merely optional and "not required." But now that Senators and Congress members responded to Pustay’s dodge and wrote the regulations update as a statutory requirement, OIP is clearly failing in its mandate to oversee FOIA compliance throughout the federal government.

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. While the law mandates that requesters be given “not less than 90 days” to file an appeal, many agencies with outdated regulations routinely give requesters much shorter 30, 45, and 60-day deadlines.

Making it more difficult for requesters to file appeals is especially detrimental because, as the government’s own data reported by the Associated Press shows, in one of three cases where an appeal is filed the government admits that its initial decision was wrong and releases additional information. The most recent government statistics from OIP show that governmentwide only four percent of FOIA requests were appealed in FY 2015 (14,639 appeals were filed out of 346,071 denials). If you extrapolate from these findings, that means in FY2015 alone 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. Denying requesters their full appeal rights by improperly shortening their timeline for filing appeals severely curtails requesters ability to obtain information they are entitled to.

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Text of the FOIA Improvement Act of 2016.

Notable scofflaws include nearly half of the cabinet-level departments. The departments of State, Commerce, Treasury, Agriculture, Veterans Affairs, and Education have all failed to follow the law’s instruction. 

Six other agencies, including the Office of Special Counsel, the Small Business Administration, and the United States Copyright Office, followed Congress’s mandate to update their FOIA regulations but failed to add in the law’s improved appeal deadline, for some reason keeping shorter, illegal appeals time limits in their regulations.

Stand out agencies, including the departments of the Interior, Homeland Security, and Energy, were able to update their regulations by the mandated timeline in a manner that made the actions of their agencies more accessible to the public. A close reading of many of these star agencies’ updated regulations shows that they heeded the advice of the requester community who published a template for model FOIA regulations in 2014 co-authored by the National Security Archive. DOJ OIP followed with their own, weaker, template in 2016. (See Openthegovernment.org’s excellent comparison.) Pro-FOIA agencies also posted their regulations for comment and accepted the suggested improvements of open government groups and the FOIA Ombuds office, OGIS.

Our audit identified 27 agencies which updated regulations that explicitly provided an email address for requesters to easily and instantly submit FOIAs, even though this best practice is not strictly required by law. The House version of FOIA Reform included a provision stating “at a minimum, each agency shall accept request for records…through an email address and shall publish such email address on the website of the agency,” but unfortunately this provision was ultimately not adopted. Now some agencies, including the Federal Bureau of Investigation, Federal Communications Commission and Customs and Border Protection, are rolling back access to their records by denying requests submitted by email.

“This audit shows that agencies’ negligence in updating their FOIA regulations can be just as damaging as active censorship,” said the Archive’s communications director Lauren Harper. Director Tom Blanton remarked, “The senators and congress members who put so much work into passing the new FOIA law are not going to be very happy to see so many agencies ignoring their good work.” Nate Jones, the Archive’s FOIA project director and member of the FOIA Federal Advisory Committee noted, “Agencies need to stop dragging their heels and follow Congress’ orders and make FOIA work for requesters.”

The National Security Archive has conducted 16 FOIA Audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:

National Security Archive Audit Shows 3 out of 5 Federal Agencies Flout New FOIA Law

Only 38 of 99 Agencies have Updated FOIA Regulations as Required by June 2016 Law *
AGENCY Date of Last Update
United States Copyright Office Feb. 7, 2017
National Mediation Board Feb. 1, 2017
National Archives and Records Administration Feb. 1, 2017
Department of Labor Jan. 24, 2017
Administrative Conference of the US Jan. 23, 2017
Federal Communications Commission Jan. 13, 2017
Department of Housing and Urban Development Jan. 12, 2017
Small Business Administration Jan. 10, 2017
Federal Labor Relations Authority Jan. 10, 2017
Federal Maritime Commission Jan. 9, 2017
Department of Defense Jan. 5, 2017
Department of Justice Jan. 4, 2017
Special Inspector General for Afghanistan Reconstruction Jan. 4, 2017
National Endowment for the Humanities Jan. 3, 2017
Nuclear Regulatory Commission Dec. 30, 2016
Equal Employment Opportunity Commission Dec. 29, 2016
Date FOIA Improvement Act Mandated FOIA Regulations be Updated by Dec 27, 2016
Department of Energy Dec. 27, 2016
Occupational Safety and Health Review Commission Dec. 27, 2016
Federal Open Market Committee Dec. 27, 2016
Agency for International Development Dec. 22, 2016
National Credit Union Administration Dec. 22, 2016
Federal Election Commission Dec. 23, 2016
Office of Government Ethics Dec. 23, 2016
Federal Trade Commission Dec. 22, 2016
Federal Energy Regulatory Commission Dec. 21, 2016
Department of the Interior Dec. 20, 2016
Legal Services Corporation Dec. 16, 2016
Surface Transportation Board Dec. 15, 2016
United States Trade Representative Dec. 15, 2016
United States International Trade Commission Dec. 1, 2016
United States Postal Service Nov. 30, 2016
Federal Deposit Insurance Corporation Nov. 22, 2016
Department of Homeland Security Nov. 22, 2016
National Indian Gaming Commission Nov. 2, 2016
Office of Special Counsel Oct. 24, 2016
Department of Health and Human Services Oct. 28, 2016
Farm Credit Administration Sep. 15, 2016
Farm Credit System Insurance Corporation Aug. 30, 2016
FOIA Improvement Act of 2016, June 30, 2016
Department of State Apr. 6, 2016
Corporation for National and Community Service Mar. 10, 2016
Federal Financial Institutions Examination Council Dec. 24, 2015
Federal Housing Finance Agency Dec. 24, 2015
Federal Reserve System Dec. 2, 2015
Department of Commerce Nov. 13, 2015
Securities and Exchange Commission Jul. 15, 2015
Federal Retirement Thrift Investment Board Nov. 14, 2014
National Aeronautics and Space Administration Aug. 11, 2014
Peace Corps Apr. 10, 2014
Department of Transportation Mar. 25, 2014
National Capital Planning Commission Feb. 27, 2014
National Endowment for the Arts Feb. 20, 2014
Institute of Museum and Library Services Feb. 19, 2014
Overseas Private Investment Corporation Feb. 13, 2014
Privacy and Civil Liberties Oversight Board Nov. 8, 2013
National Science Foundation Aug. 29, 2013
Environmental Protection Agency Jun. 25, 2013
Commodity Futures Trading Commission Apr. 16, 2013
Consumer Financial Protection Bureau Feb. 15, 2013
Council of the Inspectors General on Integrity and Efficiency Dec. 14, 2012
Federal Mediation and Conciliation Service Nov. 6, 2012
Federal Mine Safety and Health Review Commission Aug. 14, 2012
National Labor Relations Board Jan. 31, 2012
Department of Veterans Affairs Aug. 19, 2011
Council on Environmental Quality Aug. 11, 2010
Department of Education Jun. 14, 2010
Tennessee Valley Authority Mar. 12, 2010
Department of the Treasury Jan. 6, 2010
Postal Regulatory Commission Nov. 5, 2009
Pension Benefit Guaranty Corporation Jun. 8, 2009
Attorney General Eric Holder FOIA Guidelines, March 19, 2009
Millennium Challenge Corporation Sept. 17, 2008
OPEN Government Act of 2007, December 31, 2007
Social Security Administration Dec. 10, 2007
Department of Agriculture Nov. 27, 2007
Office of the Director of National Intelligence Aug. 16, 2007
Central Intelligence Agency Jul., 18, 2007
National Transportation Safety Board Apr. 16, 2007
Inter-American Foundation Oct. 30, 2006
Court Services and Offender Supervision Agency Jun. 3, 2003
American Battle Monuments Commission Feb. 26, 2003
The Intelligence Authorization Act of 2002 amending the FOIA, November 27, 2002
Commission on Civil Rights Nov. 22, 2002
Broadcasting Board of Governors Feb. 27, 2002
Office of Personnel Management Dec. 27, 2001
Court Services and Offender Supervision Agency Nov. 24, 2000
Merit Systems Protection Board Aug. 10, 2000
Committee for Purchase from People who are Blind or Severely Disabled Jun. 2, 2000
Office of National Drug Control Policy Dec. 15, 1999
Export-Import Bank Mar. 25, 1999
General Services Administration Oct. 23, 1998
Office of Management and Budget Apr. 27, 1998
Amtrak Feb. 13, 1998
Defense Nuclear Facilities Safety Board Dec. 22, 1997
Consumer Product Safety Commission Sept. 2, 1997
The Electronic Freedom of Information Act Amendments of 1996, October 2, 1996
Armed Forces Retirement Home Regulations not available
U.S. International Boundary and Water Commission Sept. 4, 1990
Selective Service System Apr. 24, 1987
Railroad Retirement Board Apr. 6, 1987
United States African Development Corporation Jul. 17, 1985
Office of Science and Technology Policy Mar. 15, 1983
Office of Navajo and Hopi Indian Relocation Jan. 14, 1982
The 1976 Government in the Sunshine Act Amendments, September 13, 1976
United States Trade and Development Agency No regulations

*Dates are current as of March 1, 2017