Yesterday, in comments, 14 organizations committed to government openness and accountability express concerns that certain provisions in a Department of Health and Human Services (HHS) proposed regulations could hinder the FOIA process. The comments provide recommendations on ways the regulations should go further to ensure greater access to public interest information. The comments include recommendations designed to ensure that the proposed HHS FOIA regulations – the first revision since 1988 — uphold requesters’ rights under the FOIA statute, and conform to the new provisions of the FOIA Improvement Act of 2016.

The recommendations to HHS include:

Revise the section on the presumption of openness and proactive disclosure to conform to the provisions in the FOIA Improvement Act.

Remove language that would allow HHS to decide whether to grant a requester media status on a case-by-case basis.

Remove provisions that attempts to add additional requirements for requesters that are directly contrary to the FOIA statute, and not authorized by law.

Remove language that would permit HHS to apply a “broad” interpretation of commercial or financial information when applying Exemption 4 to withhold information.

Remove unnecessary and potentially harmful language on law enforcement record exclusions.

The FOIA Improvement Act of 2016, signed into law by the President on June 30, 2016, requires agencies to review and revise their FOIA regulations in accordance with the new amendments within 180 days from the enactment of the Act. As agencies revise and update their regulations, OTG and our partners monitor agencies’ proposals and issue comments to encourage updated regulations that uphold the public’s right to know and conform to the FOIA, including the new provisions in the FOIA Improvement Act.

Read the comments here.

Additional information on agency FOIA regulations and the FOIA Improvement Act:

President sign most significant reform to FOIA since its original passage (OTG)

Updating agency FOIA regulations – DOJ’s guidance and template mostly ignores civil society’s model FOIA regulations

Openness groups call for DHS FOIA provisions to enshrine the “presumption of openness”