HUD published a final rule amending its Freedom of Information Act (FOIA) regulations to implement the “FOIA Improvement Act of 2016” passed on June 30, 2016. HUD did not issue a proposed rule because the final rule follows the statutory language of the Act. Several provisions may be of interest to advocates.
When an agency such as HUD determines whether to comply with a FOIA request, the 2016 Act requires the agency to immediately notify the requester of the agency’s decision and its reasoning. The 2016 Act also requires the agency to notify the requester that there is a right to seek assistance from the agency’s FOIA public liaison. For adverse determinations, the 2016 Act requires agencies to give the requester at least 90 days from the date of the adverse determination to file an appeal. In addition, the 2016 Act requires agencies to notify the requester that there is a right to seek dispute resolution services from the FOIA public liaison or from the Office of Government Information Services (OGIS).
The existing regulation requires HUD to respond to a FOIA request within 20 working days. However, when a FOIA request involves “unusual circumstances,” agencies have long been required to provide a written notice to requesters for an extension. Unusual circumstances include a request for a large volume of records or the need to search for records in another physical location or from another agency. If an extension of greater than ten working days is needed due to unusual circumstances, agencies have been required to provide the requester with an opportunity to limit the scope of the request so that the request can be processed more quickly or to arrange an alternative time to respond. The 2016 Act adds that when unusual circumstances exist and an agency needs to extend the time limits by more than ten additional working days, the written notice to the requester must notify the requester of the right to seek dispute resolution services from the OGIS.
The 2016 Act requires agencies to make records available for public inspection in an electronic format that, because of the subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records, or that have been requested three or more times.
There are some changes in the section pertaining to fees. Advocates may seek a fee exemption under the existing regulations which allow agencies to waive fees for searching or copying. To request a fee waiver, advocates need to explain their organization’s mission and its nonprofit status to demonstrate that the organization does not have a commercial interest in requesting the information. Advocates should explain how the information will:
- Be of interest to more than a small number of people and how the organization can distribute the information to many people, and
- Lead to a level of public understanding of a HUD (or other agency) activity that is far greater than currently exists.
The final rule as at: http://bit.ly/2jA228h
More information about FOIA is on page 2-31 of NLIHC’s 2016 Advocates’ Guide, at: http://bit.ly/2iGG57p