Access Board Finalizes FOIA Regulation Update, Modernizing Transparency and Information Access Procedures

The Architectural and Transportation Barriers Compliance Board, commonly known as the Access Board, has finalized a significant update to its Freedom of Information Act (FOIA) regulations. Effective September 23, 2026, this final rule replaces the Board's existing FOIA framework, which had not seen comprehensive revisions since 1990. The move signals a concerted effort by the federal agency to modernize its procedures for public information access, ensuring compliance with recent legislative amendments and current technological capabilities.

Background and Legislative Imperatives

Initially established in 1980, with minor revisions in 1987 and 1990, the Access Board's FOIA regulations needed substantial overhaul to reflect contemporary requirements. This final rule brings the Board's practices into alignment with the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. These legislative changes introduced new mandates for federal agencies regarding information disclosure. Additionally, the revised regulations conform to the Department of Justice's guidelines for agency FOIA procedures, promoting uniformity across the federal government. A primary driver for this update was also the rapid evolution of technology, which has dramatically changed how information is stored, retrieved, and disseminated since the Board's last significant regulatory revision.

Key Revisions and Stakeholder Feedback

The final rule follows a Notice of Proposed Rulemaking (NPRM) published on August 4, 2026. The Access Board received eight public comments on its proposal, which it carefully considered in crafting the final text. Several substantive concerns raised by commenters directly influenced the final provisions.

• Timing of Initial Response: Commenters sought clarity on response timelines. The Access Board explicitly added language to section 1120.5, stating that its FOIA office will respond to requests within 20 working days, a statutory requirement. It also clarified in section 1120.3(b) that this statutory timeframe will be paused if the agency needs to seek clarification from the requester, resuming once the necessary information is provided.

• Sufficiency of Record Description: Concerns were raised that the proposed rule understated the consequences of a vague request. The Board revised section 1120.3(b) to clearly state that if a requester fails to provide sufficient information to reasonably describe the records sought, the request will ultimately be denied, not merely delayed.

• Expedited Processing: The initial proposal for expedited processing included a broad provision for "other cases as determined by the agency." Two commenters criticized this as insufficiently specific. After reconsideration, the Access Board removed this discretionary language, retaining only the criterion of "compelling need" as defined in 5 U.S.C. 552(a)(6)(E)(i) for granting expedited processing. This ensures a stricter and more defined standard for such requests.

• Fees for Information Processing: One commenter challenged the proposed fee schedule's substantiation. In response, the Access Board introduced a new category for Information Technology personnel, charged at a GS-13 Step 5 level ($66.14 per hour), acknowledging the significant role IT staff play in searching electronic records. The clerical category was also renamed to "clerical/administrative" to encompass a broader range of support staff. The Board affirmed its fee schedule, based on federal salary scales including Washington, D.C. locality pay, as accurately reflecting its direct costs, and declined a suggestion to include specific hourly rates in the regulation for annual updates, citing the public availability of federal salary scales.

• Submitter Objections to Disclosure: Two commenters expressed concern that the proposed language in section 1120.7 might lead the Board to defer to submitters' opinions regarding confidential commercial information. The Access Board clarified its stance, emphasizing that while submitters are provided notice and an opportunity to object, the agency retains its independent authority to determine if information should be withheld under FOIA Exemption 4. The rule explicitly states that the Board will "consider" objections but is not bound by a submitter's preference.

Implications for Transparency and Access

These revisions signify the Access Board's commitment to maintaining a robust and modern FOIA program. By incorporating statutory changes and technological advancements, the Board aims to improve the efficiency and clarity of its information disclosure processes. The updated fee schedule, particularly the inclusion of IT personnel, reflects the evolving nature of information retrieval in the digital age. Furthermore, the Board's clear articulation of its independent review process for confidential commercial information ensures that decisions on public access are made judiciously, balancing privacy concerns with the public's right to know. The final rule endeavors to make the Access Board's FOIA program more transparent, accessible, and consistent with broader federal guidelines.