Old Regs May Not Necessarily Be Bad Regs, But Can Be A Red Flag
Earlier this week, the National Security Archive published its latest FOIA audit. The audit determined which federal agencies have updated their FOIA regulations in the electronic Code of Federal Regulations to reflect the most current FOIA legislation, the 2007 OPEN Government Act, and which have yet to do so. So far, we have received positive and constructive responses from several agencies regarding the posting, including a letter* from the Chief FOIA Officer at the Merit Systems Protection Board. His letter reminded us that six agencies (not our previously reported three) participate in FOIAonline, the government portal that provides a one stop shop for requesting, tracking, and posting digital versions of documents. We have since updated our audit to reflect the correction.
The MSPB’s letter also informed us that despite last being updated in 2000, that the Board does “follow all the other ‘best practices’ listed in [our] post.” We very much appreciate the prompt agency feedback, and applaud the MSPB for embracing best practice FOIA regulations. Hopefully the next step the MSPB, and other agencies in similar positions, will take is to formally update their regulations in the Code of Federal Regulations. This will ensure that best practices are continued, even if there are shifts in agency personnel as administrations reshuffle and change. While outdated FOIA regulations do not necessarily mean regulations are bad, regulations that do not reflect the most current legislation can be a red flag to FOIA requesters, and agencies whose regulations are grossly out of date give the impression that these agencies do not prioritize FOIA. FOIA requesters, regardless of their level of sophistication or knowledge of the FOIA, expect, reasonably and rightfully so, that when they can find an agency’s FOIA regulations, that those regulations reflect good law.
* Full text of the MSPB letter:
As the Chief FOIA Officer for the Merit Systems Protection Board (MSPB), I’d like to correct a possible inaccuracy in your post on this subject and provide an additional comment. The MSPB is a charter member of FOIAonline; your first example of “best practice” regulations indicates only three agencies currently participate in FOIAonline. You may be referring only to the Department of Commerce, the Environmental Protection Agency, and the National Archives and Records Administration.
In addition, we actually follow all the other “best practices” listed in your post. You may review our Annual FOIA Reports and Chief FOIA Officer Reports at http://www.mspb.gov/FOIA/foiareports.htm for more information.
I’d appreciate it if you would clarify which agencies participate in FOIAonline, and post these comments where appropriate. Thanks very much for your coverage of these important issues.