Comment of Scholars of Freedom of Information Law on FAR Overhaul, Part 39
I write in transmittal of the following Comment of Scholars of Freedom of Information Law on FAR Overhaul, Part 39, which I emailed to OMB on July 28. The matter collaterally is of importance in the work of the FOIA Advisory Committee. Thank you.
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Comment of Scholars of Freedom of Information Law on FAR Overhaul, Part 39 - July 28, 2025
We, the undersigned, are scholars of freedom of information law. We suggest that the federal acquisition process would benefit from recognition of agency responsibilities to comply with the Freedom of Information Act (FOIA), 5 U.S.C. § 552, which would promote the use of technology to make fulfillment of agencies’ FOIA duties less costly and time-consuming, at a significant manpower savings to the taxpayer.
Although the FAR, 48 C.F.R. ch. 1, provides for the inclusion of a clause in solicitations and contracts for the design, development, or operation of a system of records to accomplish an agency function subject to the Privacy Act, 5 U.S.C. § 552a (see 48 C.F.R. §§ 24.104 & 52.224-1), it appears that there is no comparable FAR provision addressing an agency’s obligation under FOIA to provide access to federal agency records. As the federal government has increased its reliance on electronic data systems, it is important, in the interest of transparency, to ensure that agencies have the means effectively and efficiently to pull information out of these systems in response to FOIA requests. One way to do that is to require federal agencies to consider their responsibilities under FOIA when they set out to acquire information technology, especially communication technology.
In 2020, we understand that the National Archives and Record Administration (NARA) recommended to the Office of Management and Budget (OMB) that FAR part 39 be revised to recognize FOIA obligations. Specifically, NARA proposed, inter alia:
Agencies must ensure that contracts for designing, developing, purchasing, or operating information technology or systems, including cloud-based, and Federal or non-Federal information systems, contain requirements that facilitate FOIA processing in their system design specifications (5 U.S.C. § 552). Each agency must ensure that system design includes the following FOIA-related search and retrieval capabilities:
(1) conduct robust searches of electronic records in response to FOIA requests;
(2) document the search and search results; and
(3) export the documents that result from the searches in the format the agency requires for responding to FOIA requests.
The NARA proposal was based on Recommendation 2018-03 of the FOIA Advisory Committee. The Committee in 2018 recognized a need for “all agencies, when acquiring electronic records management software, electronic mail software, and other records related information technology, to consider features that will help facilitate the agencies’ responsibilities under FOIA to provide access to federal agency records.” Accordingly, the Office of Government Information Services (OGIS) drafted a business case in FY 2019 that would modify the FAR to require access to federal agency records as a consideration in the procurement process. As stated above, NARA submitted the business case to OMB in early FY 2020 for consideration by the Federal Acquisition Regulatory Council.
Upon the occasion of the FAR overhaul process, as to part 39 and more generally, we suggest that government transparency and efficiency would be achieved by agency recognition of FOIA responsibilities at the time of acquisition of information and communication technology systems. “Transparency by design” in such systems obviates waste of government resources trying to comply with FOIA after the fact with systems ill designed
to facilitate compliance.
We therefore recommend that the above specifications be included in the FAR revisions being contemplated, in the revised regulations themselves, in the newly contemplated Buyer’s Guides, or in both.
Respectfully submitted,
/s/ Richard J. Peltz-Steele
Richard J. Peltz-Steele, J.D.
Chancellor Professor, University of Massachusetts Law School
Jason R. Baron, J.D.
Professor of the Practice, University of Maryland College of Information
David Cuillier, Ph.D.
Director, The Freedom of Information Project, Brechner Center for the Advancement of the First Amendment, University of Florida College of Journalism and Mass Communication
Shelley Kimball, Ph.D.
Associate Program Director, Senior Lecturer, Johns Hopkins Krieger School of Arts and Sciences
Margaret Kwoka, J.D.
Lawrence “Larry” Herman Professor in Law, Moritz College of Law, The Ohio State University