The White House Office of Management and Budget (“OMB”) published a notice of proposed revisions to its Uniform Freedom of Information Act Fee Schedule and Guidelines in today’s issue of the Federal Register. OMB first published the guidelines, which are binding on all agencies subject to the Freedom of Information Act (“FOIA”), over thirty-years ago. They have never been updated, despite repeated requests from the transparency community, the FOIA Federal Advisory Committee, and the Archivist of the United States. The much-anticipated revisions aim to improve FOIA administration and ensure more equitable resolution of fee issues across the government. OMB’s notice comes amid a lawsuit filed by Cause of Action Institute (“CoA Institute”) to force such an update.
Cause of Action Institute Files Appeal with D.C. Circuit to Secure FOIA Access to Internet Browsing History Records
Arlington, VA (Jan. 16, 2020) – Earlier this week, Cause of Action Institute (“CoA Institute”) filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit in Cause of Action Institute v. White House Office of Management and Budget, a Freedom of Information Act (“FOIA”) lawsuit concerning access government officials’ Internet browsing histories. The appeal seeks to overturn the district court’s determination that such records are outside the scope of disclosure, even when they are created on government-issued computers in the course of official business. CoA Institute field the underlying lawsuit against the Office of Management and Budget (“OMB”) and the Department of Agriculture (“USDA”) in June 2018.
CoA Institute Sues White House Office of Management and Budget over Refusal to Update Outdated FOIA Fee Guidelines
Cause of Action Institute (“CoA Institute”) filed a lawsuit yesterday against the White House Office of Management and Budget (“OMB”), continuing the parties’ longstanding feud over the agency’s failure to update thirty-year-old guidelines for the adjudication of fee issues under the Freedom of Information Act (“FOIA”). In June 2016, CoA Institute submitted a petition for rulemaking to OMB asking it to revise the government-wide 1987 Uniform Freedom of Information Act Fee Schedule and Guidelines. After CoA Institute filed suit to compel a response, OMB denied the petition, arguing incorrectly that no agency subject to the FOIA is “currently relying” on outdated or statutorily superseded guidance. The new lawsuit seeks judicial review of that denial. Learn More
CoA Institute Calls on Inspectors General Council to Revise Proposed FOIA Regulations
Cause of Action Institute (CoA Institute) submitted a comment last week to the Council of Inspectors General on Integrity and Efficiency (CIGIE) concerning the agency’s interim final rule implementing revised Freedom of Information Act (FOIA) regulations. CoA Institute explained that the agency’s new rule could cause confusion by directing staff to interpret the FOIA statute and CIGIE’s implementing regulations in light of outdated fee guidelines published by the White House Office of Management and Budget (OMB).
OMB published its Uniform Freedom of Information Fee Schedule and Guidelines in 1987. Although FOIA requires an agency to promulgate its fee schedule in conformity with the OMB Guidelines, they are no longer authoritative because they conflict with the statutory text, as amended by Congress, and judicial authorities. Indeed, over the past thirty years, OMB has made no effort to revise its fee guidelines. The OMB Guidelines therefore should not be used as a reference point for proper administration of the FOIA.
One problematic aspect of the OMB Guidelines is the definition of a “representative of the news media.” The current statutory definition of this fee category, which was introduced by the OPEN Government Act of 2007, differs significantly from the definition provided by OMB in 1987. OMB’s definition, which incorporates an “organized and operated” standard, has long been one of the more contentious aspects of the OMB Guidelines. In 2015, however, the D.C. Circuit issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.
The OMB Guidelines also have been rendered obsolete by other jurisprudential developments. For this reason, in 2016, the FOIA Advisory Committee and Archivist of the United States called on OMB to update its fee guidance. CoA Institute filed a petition for rulemaking on the issue, too. Last November, we filed a lawsuit to compel the agency to provide a response to that petition. The lawsuit is still pending with respect to the fee guidelines, although the agency has agreed to update its own implementing regulations (and to abandon the “organized and operated” standard). Until the OMB Guidelines have been revised to reflect modern circumstances and the actual text of the FOIA, however, no agency should direct its staff to consult them in any way as an authoritative guide to interpreting the law.
Ryan P. Mulvey is Counsel at Cause of Action Institute
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Open in new tab How a small 242-year-old Spanish fort is part of an ongoing effort to make the government more transparent and accountable
Presidio Trust Adopts CoA Institute’s Recommendations with Final FOIA Regulations
In 1776, more than 2,800 miles away from the battles of the American Revolution, a Spanish military fort was established on the tip of the San Francisco Peninsula. Today, this small slice of land is a federal park managed by an obscure federal agency called the Presidio Trust. Two hundred and forty-two years later, this former Spanish military fort is part of Cause of Action Institute’s ongoing effort to make all levels of the federal government more transparent and modernize the federal government’s FOIA process.
Earlier this week, the Presidio Trust finalized a rule implementing new Freedom of Information Act regulations and incorporating important revisions proposed by Cause of Action Institute in March 2018.
CoA Institute made several recommendations in response to the Presidio Trust’s proposed rulemaking. Most importantly, we urged the agency to remove outdated “organized and operated” language from the definition of a “representative of the news media.” Such language has been used by government agencies in the past to deny news media requester status—and favorable fee treatment—to government watchdog organizations, including CoA Institute.
For example, CoA Institute sued the Federal Trade Commission, and took its case all the way to the D.C. Circuit, to get the agency to acknowledge that its FOIA fee regulations were outdated and that it had improperly denied CoA Institute a fee reduction. In deciding that case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases. CoA Institute cited this case to the Presidio Trust, and the agency took heed of the current case law, removing the outdated “organized and operated” standard from its final rule.
The statutorily superseded “organized and operated” standard originates with FOIA fee guidelines published by the White House Office of Management and Budget (OMB) in 1987. Portions of the OMB guidance are no longer authoritative because they conflict with the statutory text, and judicial authorities, including Cause of Action v. Federal Trade Commission.
In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update its fee guidelines. CoA Institute filed a petition for rulemaking on the issue and is litigating the matter in federal court. Earlier this summer, OMB finally agreed to update its agency regulations, and amend its definition of a news media request, but the agency continues to refuse to update the 30-year-old fee guidelines.
Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on 24 separate rulemakings. Of the 13 that have been finalized, CoA Institute has succeeded in convincing nine agencies, including the Presidio Trust, to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media.”
The remaining agencies that have accepted CoA Institute’s recommendations include the following:
- Department of Homeland Security
- Office of Special Counsel
- U.S. Agency for International Development
- Amtrak
- U.S. Postal Service
- Consumer Product Safety Commission
- Securities and Exchange Commission
- Millennium Challenge Corporation
Some agencies, including the National Credit Union Administration and the Federal Reserve, have deferred their consideration of CoA Institute’s recommendations and have promised to propose further rulemakings in the near future to address outstanding FOIA fee issues.
CoA Institute’s successful comment to the Presidio Trust is another small step in our efforts to provide effective and transparent oversight of the administrative state and ensure agency compliance with the FOIA.
See also:
Cause of Action Institute’s March 2018 public comment submitted to the Presidio Trust
Ryan P. Mulvey is Counsel at Cause of Action Institute
OMB Grants CoA Institute Petition for Rulemaking, Begins Work to Update Its FOIA Regulations
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).
OMB Confirms Agencies Required to Disclose Earmarks, Declines to Enforce
The White House Office of Management and Budget (“OMB”) has confirmed that all executive branch agencies are required to disclose attempts by congressional and other outside force to influence the merit-based decision-making process for federal spending. These efforts to earmark federal spending must be disclosed on agency websites within thirty days of their receipt. But OMB has refused to issue new guidelines directing agencies to comply with the rule.
OMB’s reaffirmation came in a letter during litigation declining Cause of Action Institute (“CoA Institute”) and Demand Progress’s 2015 petition for rulemaking that asked the agency to enforce President George W. Bush’s Executive Order 13,457.
Background
In 2008, during the congressional debate over the earmark ban, President Bush issued EO 13,457, both to take a position in the ongoing debate and in an attempt to foreclose members of Congress from evading the ban by going directly to agencies. Part of the order relied on transparency as a tool to dissuade these “executive branch earmarks” by requiring agencies to publish efforts to influence their decision making on their website within thirty days of receiving such communications. The order also directed agencies not to fund these “non-statutory” earmarks. Shortly after, OMB issued a memorandum instructing agencies how to comply with the order while implementing recent appropriations law.
CoA Institute had concerns that agencies were not complying with the order and conducted an investigation into which agencies were properly disclosing executive branch earmarks; only the Departments of Justice and Energy had published any meaningful content on their website.
In 2015, CoA Institute joined with Demand Progress and asked President Obama’s White House to depoliticize federal spending decisions by upholding the order. We filed a petition for rulemaking asking the Obama OMB “to issue a rule ensuring the continuing force and effect of Executive Order 13457[.]”
In November 2017, after two years of not receiving a response, CoA Institute sued OMB over its failure to act on the petition. With a new administration now in the White House, we urged President Trump’s OMB to issue updated guidance ensuring that agencies followed the order and disclosed earmarking efforts.
OMB Declines Petition, Confirms Executive Order Still in Effect
Due to the lawsuit, OMB has finally responded. Although OMB declined to issue a new memorandum, it confirmed that “EO 13457 Remains In Force [because] No Executive Order has been issued that displaces, alters, or withdraws EO 13457 and [because] OMB is also not aware of any judicial decision vacating EO 13457.”
Therefore, agencies are still obligated both to refuse to fund non-statutory earmarks and disclose any attempts to influence their decisions within thirty days. The Trump Administration, however, refuses to make them live up to their responsibilities.
James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.