DOJ Publishes Updated FOIA Regulation

The FOIA Improvement Act of 2016 required all agencies to review and update their FOIA regulations in accordance with the amendments to the FOIA. The Department of Justice has completed its review and today has published an Interim Final Rule that brings the regulation into alignment with the provisions contained in the FOIA Improvement Act of 2016. For example, the Department has updated its FOIA regulation to:

• provide requesters 90 days to file administrative appeals, and
• require components to notify requesters about the availability of the component’s FOIA Public Liaison and the Office of Government Information Services (OGIS) to provide assistance at various stages throughout the request process.

The Department has also amended the fee provisions of the regulation to incorporate the new statutory restrictions on charging fees in certain circumstances and has included a new paragraph regarding engaging in dispute resolution services provided by OGIS.

The updated regulation also reflects recent developments in the case law addressing two FOIA fee categories: “representative of the news media” and “educational institution.” See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015); Sack v. DOD, 823 F.2d 687 (D.C. Cir 2016). Finally, the Department of Justice has streamlined the description of the factors to be considered when making fee waiver determinations. These updates do not substantively change the analysis, but instead present the fee waiver factors in a way that is clearer for both components and requesters to understand and apply.    

The Department issued these updates as an Interim Final Rule, with a request for comments. The rule will be effective February 3, 2017. For additional information, please refer to the Federal Register notice.