Today, the White House Office of Management and Budget (“OMB”) published a notice of proposed rulemaking in the Federal Register to begin the process of updating its Freedom of Information Act (“OMB”) regulations. By doing so, OMB has effectively granted a 2016 Cause of Action Institute (“CoA Institute”) petition for rulemaking.
In the June 2016 petition, CoA Institute urged OMB to update its 30-year-old FOIA fee guidelines, which now conflict with the statute and numerous judicial decisions and to which agencies across the government are required to conform. We also asked OMB to update its own FOIA regulations, which had not been revised since 1998. Congress has made at least two important amendments to the FOIA since then that OMB has not incorporated into its regulations.[1] The impetus for CoA Institute sending this petition was to urge OMB to remove the anachronistic “organized and operated” standard from both the guidance and its own regulations’ definition of a “representative of the news media.”[2]
After being ignored for two years, CoA Institute filed suit claiming OMB had violated the Administrative Procedure Act by failing to respond to the petition. Spurred to action by that litigation, on June 29, 2018, OMB finally responded. Although the agency denied the petition to update its 30-year-old FOIA fee guidelines, it stated that it was “in the process of updating its FOIA regulations, including fee regulations, to reflect statutory changes and recent judicial decisions.”
Today, the agency published those proposed updates. OMB has removed the “organized and operated” standard from its regulations and adopted the statutory definition for a “representative of the news media.” However, it failed to heed CoA Institute’s advice that “OMB should clarify that, while a fee waiver may focus on the substance of a particular request, the news media fee status analysis “focus[es] on requesters, rather than requests[.]” CoA Institute also asked OMB to embrace the D.C. Circuit opinion clarifying that the so-called middleman standard, which allowed agencies to deny preferential fee status if they felt the requester was only a middleman between the agency and the ultimate publishing source, was inappropriate. OMB did not include any mention about the validity of the middleman standard in its new regulations.
Although CoA Institute is gratified that OMB has finally begun the process of updating its own FOIA regulations, it will continue the fight in its ongoing lawsuit to challenge OMB’s refusal to bring its 30-year-old FOIA fee guidelines—to which agencies across the federal government are required to conform—into compliance with the statute.
James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.
[1] See generally FOIA Improvement Act of 2016 and OPEN Government Act of 2007.
[2] See Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108 (D.C. Cir. 2015).
