Cause of Action Institute (CoA Institute) submitted a public comment to the National Aeronautics and Space Administration (NASA) today, concerning the agency’s proposed revisions to its Freedom of Information Act (FOIA) regulations. Our comment offers improvements to various aspects of the proposed rule which are inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for relevant records. CoA Institute also suggests an additional provision that was not proposed by the agency, implementation of the “foreseeable harm” standard, a provision we are investigating government-wide.

NASA refers to the White House Office of Management and Budget’s Uniform FOIA Fee Schedule and Guidelines as an authority for interpreting the FOIA and the agency’s implementing regulations.  However, the OMB Guidelines have been statutorily superseded, in part, by Congress’s passage of the OPEN Government Act of 2007 and conflict with case law developments. CoA Institute asks NASA to remove any reference to the OMB Guidelines in its final rule. This change is important because continued reliance on the OMB Guidelines will make it more difficult for certain kinds of requesters to receive fee reductions.  Specifically, the OMB Guidelines retain outdated definitions of “representative of the news media”[1] and “educational and non-commercial scientific institution.”[2]  This change will also make NASA’s regulations internally consistent, as they often correspond with current law and, consequently, contradict the outdated guidelines.

Although NASA adopts the current definition of a “representative of the news media,” it seeks to impose novel requirements that would make it more difficult for news media requesters to obtain a fee reduction.  Specifically, NASA would require a news media requester to explain (1) how it intends to disseminate records, (2) why those records constitute “current news,” or are of “public interest,” and (3) how the records will “shed light on agency statutory operations.” Each of these requirements is inconsistent with the FOIA and relevant caselaw, particularly Cause of Action v. Federal Trade Commission.  The fee category inquiry turns on the nature of the requester, not the purpose of his or her request.  If NASA retains these proposed hurdles, journalists and watchdogs, among others, will find it more difficult to receive favorable fee treatment.

Additionally, certain language in the proposed rule suggests that NASA considers only records within its physical “possession” to be subject to the FOIA.  This misstates the law.  Whether a record is an “agency record” for purposes of the FOIA, and therefore available for disclosure, depends on whether it is under an agency’s legal “control.”  “Control” includes instances of “constructive possession,” such as when records are stored in private email accounts or created and/or maintained by a contractor.  The FOIA statute and relevant case law are clear on this point. If NASA does not replace the word “possession” with “control” it will engender confusion and may lead to the improper denial of FOIA requests, particularly those that seek records of agency business that were created or obtained on personal accounts or record systems.

NASA’s rulemaking is supposed to implement the FOIA Improvement Act of 2016, but there is one amendment that has not been addressed: the “foreseeable harm” standard.  Under that new standard, an agency may only withhold records if it “reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”  The rule prohibits the mere technical application of FOIA exemptions. Without the language proposed by CoA Institute, it could be harder to hold NASA accountable for its compliance with the FOIA.  Some agencies have taken the view that the “foreseeable harm” standard is inconsequential.  Yet that view renders the standard mere surplusage, which is an unacceptable outcome.  By adding a provision to implement the “foreseeable harm” standard, NASA would demonstrate its commitment to the law.

Our comment to NASA is part of our ongoing efforts to ensure that all agencies continue to update their FOIA regulations to reflect the current language in statutory guidelines. The FOIA is a vital component for efforts to ensure transparency and accountability in government, and CoA is committed to leveraging our expertise to encourage proper conformity with the law among all regulatory agencies. We have submitted 27 public comments to various rulemaking efforts since the passage of the FOIA Improvement Act of 2016, and we hope NASA will follow in the footsteps of other agencies who have adopted our recommendations to conform with the law.

Ryan Mulvey is counsel at Cause of Action Institute.

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[1] Cause of Action v. Fed. Trade Comm’n, 799 F.2d 1108 (D.C. Cir. 2015)

[2] Sack v. Dep’t of Def., 823 F.3d 687 (D.C. Cir. 2016).