Experts propose model to close loopholes in FOIA regulations

Thursday - 6/12/2014, 9:25am EDT

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By Stephanie Wasko
Special to Federal News Radio

Good government groups are lambasting current regulations that govern the Freedom of Information Act and want the Justice Department to consider major changes.

The groups say agencies lack penalties for withholding information, overuse exemptions provided within FOIA and deal inconsistently and unfairly toward requesters, said Ginger McCall, associate director of the Electronic Privacy Information Center (EPIC).

The 2013 National Action Plan tasked the Department of Justice's Office of Information Policy with creating updated FOIA regulations. OIP began this process in late May.

The good government groups offered their suggestions to DoJ as part of the government's effort to receive input from experts and other interested parties.

The OIP last released regulations in March 2011.

"The most recent FOIA regulations that they have proposed were actually very, very bad," McCall said on the Federal Drive with Tom Temin and Emily Kopp.

Instead of the current regulations, EPIC worked with Citizens for Responsibility and Ethics in Washington and the National Security Archive to publish model FOIA regulations. They presented the model to the Department of Justice's Office of Information Policy.

The model provides much more requester-friendly regulations, McCall said. She said these regulations would make it easier for the media to obtain information. They also would close loopholes for agencies, which charge unfair fees, and make it more difficult for agencies to file exemptions without justification.

McCall said FOIA officers are segregated from the rest of the agency, struggling to receive responses in a timely manner. She said a recent interaction with the Department of Homeland Security exemplifies many of the problems with the current regulations.

After waiting four years for a response to her request, DHS informed McCall that if she did not express interest in the request within 20 days, the agency would administratively close it.

"There is nothing under the statutes that would allow them to do that," she said, "There is an integral unfairness in that."

When agencies do respond to FOIA requests, McCall said they often revert to a generic Exemption 5 that includes work-product and attorney-client privileges.

"We often see that exemption overused by agencies," she said, "It's a very oft-cited exemption."

The model regulations provide a check to agencies choosing to withhold information, McCall said. It requires agencies to justify an Exemption 5 with a "foreseeable harm." McCall said she hopes that this will at least provide a second thought to withholding information.

This second thought serves to promote a different way of thinking about transparency in agencies. McCall said agencies need to shift their culture of secrecy.

"There are a lot of incentives within agencies for withholding information and not so many incentives for disclosing information," she said.

FOIA offices also face challenges with financial and staffing resources. McCall said Congress should increase funding and place higher priority on FOIA.

McCall also said the Office of Information Policy should take a leadership role. She said she hopes to continue dialogue with agencies and OIP's smaller working groups.

Stephanie Wasko is an intern with Federal News Radio.

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Ginger McCall, Associate Director, Electronic Privacy Information Center