The National Aeronautics and Space Administration (“NASA”) finalized a rule last week to implement revised Freedom of Information Act (“FOIA”) regulations.  That final rule incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in May 2019.  CoA Institute’s comment recommended improvements to several aspects of NASA’s proposed regulations that were inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for agency records.  CoA Institute also recommended that NASA add a provision to implement the  “foreseeable harm” standard—a new statutory requirement that CoA Institute has been investigating government-wide.  These changes are a small, but important, step towards more transparent government and proper administration of the FOIA.

The most important proposed change that NASA accepted concerns the definition of a “representative of the news media,” a category of requester that is given preferential treatment in the form of reduced fees.  Although NASA agreed to adopt the statutory definition codified by Congress in the OPEN Government Act of 2007, the agency also tried to impose additional, novel requirements that would have made it more difficult to obtain the fee reduction.  For example, NASA sought to require a news media requester to explain (1) how it intended to disseminate records, (2) why those records would constitute “current news,” or be of “public interest,” and (3) how the records would “shed light on agency statutory operations.”  NASA agreed to eliminate all these unjustified hurdles.

NASA also made two other fee-related changes and credited CoA Institute for recommending them.   The agency first removed a provision that would have directed officials to consider fee category requests on a “case-by-case basis” based on “intended use.”  At least with news media requesters, such an approach is inappropriate, except when determining the eligibility of nascent news media requesters or clarifying whether a request has been submitted for a commercial use.  NASA also agreed to add language to clarify that the “representative of the news media” category captures “alternative media” and evolving news media formats.

Much of the confusion surrounding the news media requester category stems from outdated government-wide fee guidance published by the White House Office of Management and Budget (“OMB”) in 1987.  Those guidelines have never been updated and have been statutorily superseded or conflict with case law developments.  In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update the fee guidelines, as did CoA Institute in a petition for rulemaking.  OMB denied CoA Institute’s petition and it is now the subject on ongoing litigation.  Although NASA decided not to strike references to the OMB fee guidelines, the fact remains that no agency can rely on those superseded directives.

Finally, in terms of non-fee issues, NASA adopted two additional CoA Institute recommendations.  First, NASA replaced a reference to physical “possession” of a record with legal “control.”  This clarification is important because whether a record is an “agency record,” and therefore subject to disclosure, does not depend on whether an agency maintains a physical copy.  “Control” can include instances of “constructive possession,” such as when records are stored in private email accounts or maintained by a contractor.  Second, NASA added language to implement the new “foreseeable harm” standard, which prohibits an agency from withholding records based on the technical application of FOIA exemptions.

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Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on twenty-eight separate rulemakings.  Of the thirteen interim or proposed rulemakings that have been finalized, CoA Institute has succeeded in convincing ten agencies to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media,” including the following:

Other agencies, such as the National Credit Union Administration and the Federal Reserve, have chosen to defer CoA Institute’s recommendations and have promised to propose revisions in the near future to address outstanding fee issues.  A small minority of agencies, which published direct final rules, have failed to acknowledge the continued deficiency in their regulations.

Ryan P. Mulvey is Counsel at Cause of Action Institute