The Freedom of Information Act (FOIA) is a foundational law that guarantees US citizens the right to request and receive information from federal government agencies, with some relatively narrow exceptions. In a move reminiscent of the the Department of Justice’s attempt to defang FOIA, the Federal Mediation and Conciliation Service—which mediates labor disputes around the United States—just finalized some changes to their FOIA rules that appear to raise the price and difficulty for citizens requesting information.
For example, current law offers a straightforward public interest fee waiver or discount:
Documents are to be furnished without charge or at reduced levels if disclosure of the information is in the public interest; that is, because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester.
The new rule changes this to explicitly say that this determination is up to FMCS, and to leave room for the FMCS to deny a waiver even if the request is judged to be in the public interest (emphasis mine):
Documents may be furnished without charge or at reduced levels if FMCS determines that disclosure of the information is in the public interest; that is, because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester.
There is a raft of other changes that raise fees, increase standard processing times, allow the agency to label a request as “complex” and put it into a longer queue, and allow indefinite delays to processing.
Interestingly, two policies are being removed entirely – one that says dispute notices are disclosable, and one that mandates that the agency report to Congress what requests were denied and why. The regulation states these are removed because “they are neither required by law nor necessary to interpret the law.” It’s not clear whether the agency now believes that the original legislative statute is sufficient to guarantee these policies, or whether the agency no longer believes they are required to implement them.
These regulations were first proposed in 1999, then re-proposed in 2007, and only made final on Tuesday, November 6th. The second and final versions each say that no public comments were received on the version before it.
If you’d like to analyze what this rule changes, the easiest way I’ve found is comparing the rule’s web version (or public inspection PDF) on FederalRegister.gov to Cornell’s online Code of Federal Regulations. To follow ongoing changes to FOIA around the government, I recommend using Scout, a tool we built to do just that, and how this particular rule came to our attention.