Notice & Comment

DHS Proposes Changes to the Freedom of Information Act, by Elisabeth Ulmer

On July 29, 2015, the Department of Homeland Security (“DHS”) proposed a rule to amend its regulations under the Freedom of Information Act (“FOIA”). The DHS states that it would like “to update and streamline the language of several procedural provisions, and to incorporate changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007.” The comment period for this rulemaking closed on September 28, 2015.

Enacted in 1967, the FOIA is codified at 5 U.S.C. § 552 and allows the public to request records from any federal agency. It is meant to facilitate “ broad disclosure” of government records and is “often described as the law that keeps citizens in the know about their government.” The Department of Justice’s Office of Information Policy (“ OIP”) monitors agency compliance with the dictates of the FOIA. Agencies may use nine exemptions to withhold information that would infringe on the interests of personal privacy, national security, and law enforcement, but when releasing the information would not cause harm, they have the authority to view these exemptions as discretionary instead of mandatory. Furthermore, pursuant to § 552(b), where possible, agencies must release “[a] reasonably segregable portion of a record…after deletion of the portions which are exempt.” The Supreme Court has noted, “We have…consistently recognized that the basic objective of the Act is disclosure,” and the OIP “ encourages all agencies to fully comply with both the letter and the spirit of the FOIA.”

Under the Openness Promotes Effectiveness in our National Government Act of 2007 (“ OPEN Government Act”), all agencies must have a Chief FOIA Officer, who will designate FOIA Public Liaisons. The definition of “record” was revised to cover records “maintained for an agency by an entity under Government contract, for the purposes of records management.” The OPEN Government Act also amended other administrative sections of the FOIA, which largely deal with agency responses to requests. These changes include limits on agency response time for misdirected requests, tracking numbers for requests that will take more than ten days, and ways to monitor request status. The OPEN Government Act was the first time that the FOIA had been amended in more than ten years.

The suggested changes to the DHS’ FOIA regulations concern the filing of FOIA requests with DHS agencies and the responsibilities of DHS in responding to such requests. For instance, with respect to making requests, third-party requesters no longer must provide written authorization from the subject of the records (or proof of death). However, these requesters may receive more records if they provide written authorization or proof of death, and DHS agencies may seek more information to ensure that consent has been received. In addition, if a FOIA request has been directed to the wrong DHS agency, that agency will automatically redirect it, unless the records sought are not in the possession of any DHS agency.

With respect to administrative appeals of decisions on FOIA responses, the DHS proposes to include in its FOIA regulations the statutory 20-day time limit for responding and the option of the statutory 10-day extension of the 20-day limit in some situations, as well as the notification that requestors must file an appeal with the agency before taking the denial to court, unless the FOIA request had expedited processing.

Other suggested revisions affect the timing of agency responses to requests, the preservation of records, FOIA requests for information contained in a Privacy Act system of records, and fees relating to FOIA requests.

The DHS received 15 comments for this proposed rule. One commenter, noting the DHS’ intent to revise its definition of a representative of the news media, called on the DHS to consider the August 25, 2015 opinion of the U.S. Court of Appeals for the District of Columbia Circuit, which explained a test for a news media representative.

In addition, two comments addressed different facets of DHS response times relating to FOIA requests. First, § 5.3(c) of the Proposed Rule states, “If a request does not adequately describe the records sought, DHS may seek additional information from the requester.” Although DHS may administratively close the FOIA request if the requestor does not respond to the request for more information within 30 days, one commenter urged the DHS to extend this response time to 60 days. Second, § 5.8(d) states that an Appeals Officer “may extend the time limit [beyond 20 working days] for responding to an appeal provided the circumstances set forth in 5 U.S.C. 552(a)(6)(B)(i) are met.” Another commenter recommended adding that this time extension may not exceed ten working days.

Furthermore, in a January 21, 2009 memorandum, President Obama directed all department and agency heads to “adopt a presumption in favor of disclosure” when responding to FOIA requests. Following this presidential memorandum, the Attorney General issued guidelines stating that agencies must demonstrate that when they want to withhold records, it is more than simply that the records fall under a FOIA exemption “as a technical matter.” A commentor advised that § 5.6 of the Proposed Rule “should incorporate the presumption of openness standard and the Attorney General’s guidance to ensure exemptions under FOIA are properly asserted by DHS components.” The DHS proposed adding a paragraph to its regulations with the OIP’s requirement of obtaining its approval of the use of exclusions in DHS FOIA responses and of documenting an administrative record of requesting and obtaining this approval.

By making these amendments to its FOIA regulations on filing and responding to FOIA requests, the DHS hopes to enhance access to the records that its agencies maintain. The DHS believes that the proposed rule would be beneficial because the changes would clarify its FOIA regulations for requestors and DHS employees.

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