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From Health Law Daily, October 28, 2016

HHS finalizes updated FOIA regulations

By Kathryn S. Beard, J.D.

Freedom of Information Act (FOIA) requests will be easier for the public, thanks to newly finalized HHS regulations incorporating statutory, technological, and organizational changes. The agency received 10 comments on the Proposed rule, which resulted in streamlining the Final rule and aligning it more closely with statutory language (Final rule, 81 FR 74930, October 28, 2016).

HHS’ FOIA (5 U.S.C. §552) regulations were last updated in 1988; the updated regulations incorporate statutory changes from the Electronic FOIA Act of 1996 (E-FOIA Act) (P.L. 104-231), the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act) (P.L. 110-175), and the FOIA Improvement Act of 2016 (FOIA Improvement Act) (P.L. 114-185). The Proposed rule (81 FR 39003, June 15, 2016) included information about FOIA requests and processing, including an acknowledgement of the request from HHS within 10 days of receipt (see HHS getting up to date on Freedom of Information Act processing, June 15, 2016). Most provisions in the Proposed rule were adopted as Final, but there were a few changes based on comments received.

Alignment with statutory language. Commenters recommended changing the regulatory language to more closely align with the statutory language regarding (1) the presumption of openness and proactive disclosures; (2) when the 20-working-day response period begins to run; and (3) listed exemptions to disclosure requirements. In each instance, HHS altered the regulations to follow the statute.

Redundancies and corrections. Multiple comments pointed out redundancies in the proposed regulations. HHS took action to remove duplicative language, including a second mention that federal agencies may not submit FOIA requests and with regard to fee waiver requests. There were also a few comments about errors in the Proposed rule; for example, a link in the definition of "Freedom of Information (FOIA)" was no longer active, and the agency updated the link to the current FOIA text. The Proposed rule also made one reference to "requestor," which was changed to match the remaining references to the "requester."

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