Changes to FOIA Procedural Rules
Thursday, February 17, 2022
The Commission previously published a notice of proposed rulemaking that permitted public comment on the rules. From that it determined that it would make two changes to its proposed rules in light of comments received and that it would adopt those rules as final. On February 1, 2022, the Commission published its notice of Final Rule implementing the Freedom of Information Act. The revised rules will take effect on March 3, 2022.
Notice of Proposed Rulemaking
The Commission last made substantive revisions to its FOIA procedural rules, 29 CFR part 2702, in December 2007. 72 FR 71788-01 (Dec. 19, 2007). Since that time, the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538, was passed and it made several substantive and procedural changes with regard to the administration of the FOIA. Among the changes is a requirement that each agency revise its FOIA Rules to reflect several new requirements, including our new procedure for engaging in dispute resolution through the FOIA Public Liaison and the Office of Government Information Services (“OGIS”) and the requirement that requesters be given a minimum of 90 days to file an administrative FOIA appeal.
In light of the new changes, the Commission took the opportunity to conduct a full review of its FOIA Rules, with the objective of performing a comprehensive cleanup so that the rules are more user-friendly for our requester community. In order to provide transparency as to its FOIA processes, the Commission has proposed both new rules and revisions to its current rules to better reflect the Commission’s actual practices. The proposed revisions include such changes as clarification on the types of information that a requester must provide in order to facilitate a FOIA search of the agency’s records, additional circumstances under which expedited processing will be granted, clarification on our FOIA appeals process, and increases in certain fees. The Commission is also proposing adding two new procedural rules, one addressing confidential commercial information and the other addressing the preservation of records.
However, even with the proposed changes highlighted above, the rules still retain much of the substantive practices and procedures currently in effect. In fact, the majority of the proposed revisions consist of modifying existing language, reorganizing the layout, isolating and/or relocating certain topics, and adding paragraph headers. We have also amended section headers and added four new sections (2702.9, 2702.10, 2702.11, and 2702.12) and several new paragraphs within existing sections to accommodate the new layout.
The proposed changes are described more fully in the attached PDF.
Commenter – A.S., Monday, September 06, 2021 10:45 AM
Subject: Comments on FOIA rules
In reference to the proposed rule Freedom of Information Act proposed by The Federal Mine Safety and Health Review Commission (the Commission), I believe that the proposed revision of implementing the FOIA would allow to fulfill the need of updating the fee schedule and to clarify multiple FOIA procedures. As of my former employer “X”, updated revision that affects rules was always effective, particularly, when using tools that permit service request, data or information’s requesting and processing. I see this been implemented in order to accomplish or ensure the rapid and effective procedures for requesting information under the FOIA.
Commenter – M.R., Wednesday, September 22, 2021 3:10 PM
Subject: Comments on FOIA Rules
1) The proposed regulations omit a key provision of the FOIA statute:
In 5 U.S.C. Section 552 (a)(4)(A)(viii)(aa):
If the agency fails to comply with the extended time limit, the agency may not assess any search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees).
Every other federal agency that has implemented FOIA regulations in the last several years has included in its FOIA regulations a section respecting and restating this statutory provision. It appears that the omission of this important provision was an inadvertent oversight.
2) The fees are being increased from 15 cents per page to 25 cents per page, but the Commission does not appear to proffer any basis or facts behind this change. A statement that inflation provides for cost increases amounts to simply handwaving, since the commercial cost of photoduplication has fallen over the years since the FOIA regulations were last updated. For a Commission that relies on fact finding and rational basis and science, the increase in per page duplication has no actual or rational basis whatsoever. If the Commission were to evaluate the actual costs of photoduplication (paper, toner, electricity and labor) and reduces it to a page cost, that would be one thing. But it has not.
Furthermore, a good proxy source of information for photoduplication cost is the cost that the Commission itself pays its photoduplication service companies for duplication equipment leasing. But again, none of this available data was used to examine this.
Based on my informal research, and contacting some Xerox equipment suppliers, photoduplication costs are far lower than the proposed 25 cents per page. The Commission should reconsider this decision because overcharging for duplication is not in keeping with the intent of the statute.
My comment should not be brushed off on the basis of mootness. While the Commission proposed rule says that the fee increase would have little impact on requesters because of the prevalence of electronic records, that does not moot the conflict with the statute and its purpose that the actual cost of duplication should be charged.
Thank you for considering my comments on the proposed regulation.