The Department of Defense (“DOD”) yesterday published an interim rule proposing new regulations to implement the Freedom of Information Act (“FOIA”). The proposed changes are necessary to bring DOD regulations into compliance with the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016, but they also build upon two previous attempts by the agency to revise its FOIA procedures and policies.

Cause of Action Institute (“CoA Institute”) submitted comments to DOD about these proposed changes in November 2014 and September 2015. We commended the agency for removing outdated “organized and operated” language from its definition of a representative of the news media—especially in light of the D.C. Circuit’s landmark decision in Cause of Action v. Federal Trade Commission—but also suggested clarification and guidance to ensure the proper application of fees in FOIA cases.

We further recommended that DOD revise procedures for conducting consultations, which take place whenever an agency locates records that originated with or may implicate the equities of another government entity. The process is supposed to ensure that exempt information is properly redacted from records prior to disclosure.  We expressed concern that DOD had failed to establish adequate parameters for determining when consultation would be appropriate.

Finally, we asked DOD to remove or revise a number of problematic provisions dealing with the handling of White House information, the use of the deliberative process and attorney-client privileges, and the preservation and management of records subject to the FOIA.

Although DOD did not chose to adopt additional guidance on fee issues, or to limit consultation along the lines we suggested, DOD’s interim rule does reflect CoA Institute’s influence. For example, the agency chose to reformulate its regulations along the lines of a model regulation produced by the Department of Justice. Guidance of this sort is consistent with CoA Institute’s proposals and was referenced by CoA Institute in its comments. Moreover, DOD completely eliminated or adequately revised the problematic, byzantine provisions to which CoA Institute objected.

CoA Institute’s comment is another small step in our efforts to provide effective and transparent oversight of the administrative state.