As a new year gets underway, the staff of FOIA Advisor are pleased to provide a summary of the most notable FOIA developments outside the courthouse in 2022. We will discuss our top 10 court decisions issued last year in a forthcoming post.
Legislative proposals
Despite a great deal of scuttlebutt over the prospect of comprehensive FOIA reform in the last Congress—especially in light of the then-expected (now-realized) retirement of long-time FOIA advocate Senator Patrick Leahy (D-VT)—there were only a handful of legislative proposals introduced in calendar year 2022 that substantively dealt with public access issues.
On March 15, 2022, U.S. Senator Jodi Ernst (R-IA) introduced the Watchdog Act, which would have created a new agency within the Executive Office of the President tasked with overseeing the implementation of all federal transparency laws, including the FOIA and Privacy Act.
On June 14, 2022, U.S. Senators Marco Rubio (R-FL) and Tom Cotton (R-AR) introduced the First Opportunity for Information to Americans Act (or FOIA Fix Act), which would have limited FOIA requests to U.S. citizens, legal aliens, and entities with a principal place of business in the United States or U.S. territory.
On December 9, 2022, U.S. Senators Pat Toomey (R-PA) and Elizabeth Warren (D-MA) unveiled the Financial Regulators Transparency Act of 2022, which among other things would have extended the FOIA’s reach to regional Federal Reserve Banks and created special privileges and access rights for congressional requesters seeking records from the Federal Reserve, CFPB, SEC, FDIC, OCC, NCUA, and FHFA.
None of the foregoing proposals became law. But the Consolidated Appropriations Act for 2023, which did receive the President’s signature on December 29, 2022, included at least one substantive section dealing with the FOIA. Specifically, Section 406 requires the Department of Veterans Affairs to devise and implement a five-year plan to improve the agency’s FOIA technology, permit FOIA officers to conduct searches and review directly (rather than relying on search memoranda, for example), and to set milestones for reduction of the processing backlog. The section also requires OGIS to assess the VA’s compliance with the FOIA, and for the agency to provide annual reports to Congress and the public on the progress of the five-year backlog-reduction plan.
Regulatory updates
By our count, six agencies proposed changes to their FOIA regulations in 2022: Central Intelligence Agency; Office of the Intellectual Property Enforcement Coordinator; Environmental Protection Agency; Office of Special Counsel; Corporation for National and Community Service; and the Export-Import Bank.
Seven agencies issued final rules amending their FOIA regulations: Food and Drug Administration; Office of Special Counsel; Corporation for National and Community Service; U.S. Agency for International Development; Export-Import Bank; Federal Mine Safety and Health Review Commission; and the Pension Benefit Guaranty Corporation.
(Additionally, the EPA’s 2019 direct final rule implementing various changes to the agency’s FOIA regulations survived legal challenge in Ecological Rights Found. v. Envtl. Prot. Agency (D.D.C. Sept. 12, 2022).)
Attorney General memorandum
Attorney General Merrick Garland issued FOIA guidance to agencies on March 15, 2022, much to the delight of non-profit groups that had petitioned Garland in April 2021 and January 2022. The new guidance identifies four main principles: (1) a presumption of openness; (2) proactive disclosures; (3) removing barriers to access and reducing backlogs; and (4) ensuring fair and effective FOIA administration. Garland’s memo superseded Attorney General Eric Holder’s 2009 FOIA guidance, which the Trump Administration left in place.
Federal FOIA Advisory Committee recommendations
The most recent term of the federal FOIA Advisory Committee concluded in June 2022 with publication the next month of a final report and set of recommendations to the Archivist of the United States. Among other things, the Committee suggested reforms to the use of “Neither Confirm Nor Deny”/Glomar responses, as well as classification under Executive Order 13526; further consideration of the impact of Section 508 of the Rehabilitation Act on the FOIA; more frequent publication of FOIA logs; changes to the first-person request process; and a strengthening of the role OGIS places in FOIA administration.
Miscellaneous developments
The phase-out of FOIAonline continues. As of the date of this blogpost, NARA, NRS, and SBA are no longer using FOIAonline to manage FOIA requests, and CBP has stopped accepting new requests through the portal. The EPA still plans to “sunset” the FOIAonline platform by the end of 2023.
Relatedly, DHS has started transitioning away from its legacy FOIAXpress Public Access Portal, and is now managing requests across most DHS sub-agencies (with the exception of USCIS, OIG, and the Secret Service) through the new “SecureRelease” platform.
DOJ’s Office of Information Policy and NARA have announced their cooperation with GSA to develop new FOIA “business standards” to facilitate improved compliance and more efficient processing. As part of that initiative, NARA hosted a NexGen FOIA Tech Showcase in February 2022, which aimed to identify new technological solutions for FOIA case management. Additionally, OIP is working on an interactive “FOIA wizard” to help users “navigate” FOIA.gov.
In December 2022, the White House published the Fifth U.S. Open National Action Plan. As part of that plan, DOJ has committed to take a number of steps to bolster openness and transparency, including issuing an updated FOIA Self-Assessment Toolkit, finalizing shared FOIA business standards (as described above), and improving the user experience on FOIA.gov.
Although not directly related to the FOIA, at the end of December 2022, the Office of Management and Budget published Memorandum M-23-07 concerning the transition of all Federal agencies to an “electronic” or “paperless” environment. Among other things, Federal agencies are now expected to manage all permanent records in an electronic format by the end of June 2024, and to thereafter transfer records in electronic format with all metadata whenever depositing those records with the Archives.