The Department of Agriculture finalized a rule today implementing revised Freedom of Information Act (“FOIA”) regulations that incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency last year. These changes are a small, but important, step towards more transparent government and proper administration of the FOIA.
CoA Institute made several recommendations in response to USDA’s proposed rulemaking. Most importantly, we urged the agency to remove outdated “organized and operated” language from its definition of a “representative of the news media.” That language has been used in the past to deny news media requester status—and favorable fee treatment—to government watchdog organizations, including CoA Institute.
In 2012, we sued the Federal Trade Commission, and took our case all the way to the D.C. Circuit, just to get the agency to acknowledged that its FOIA fee regulations were outdated and that it had improperly denied CoA Institute a fee reduction by relying on the “organized and operated” standard. In deciding that case, the D.C. Circuit issued a landmark decision in 2015, which clarified the proper fee category definitions and application of fees in FOIA cases. We cited this case to USDA and the agency took heed of the controlling case law, removing the outdated “organized and operated” standard from its final rule. USDA also agreed to add clarifying language to make clear that its list of sample news media entities is “non-exhaustive” and evolving methods of news dissemination must be accommodated within the fee category.
Finally, CoA Institute asked USDA to remove language from several provisions that direct the agency’s FOIA officials to read the regulations “in conjunction with” fee guidelines published by the White House Office of Management and Budget (“OMB”) in 1987. Portions of the OMB guidance, which are the source of the “organized and operated” standard, are no longer authoritative because they conflict with the statutory text, as amended by Congress, and judicial authorities, including Cause of Action v. Federal Trade Commission.
Continued reliance on the OMB guidelines is a source of confusion. In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update its fee guidelines. CoA Institute also filed a petition for rulemaking on the issue, which was denied, and is currently litigating the matter in federal court. Although USDA decided not to alter its reference to the OMB guidelines, the fact remains that no agency can rely on OMB’s superseded directives.
* * *
Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on twenty-eight separate rulemakings. Of the fourteen interim or proposed rulemakings that have been finalized, CoA Institute has succeeded in convincing eleven agencies to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media,” including 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
- Presidio Trust
- Millennium Challenge Corporation
- Institute of Museum and Library Services
- National Aeronautics and Space Administration
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
