On August 4, 2026, the Architectural and Transportation Barriers Compliance Board, commonly known as the Access Board, announced a significant update to its Freedom of Information Act regulations through a Notice of Proposed Rulemaking. This initiative seeks to modernize how the federal agency handles public requests for information, aligning its processes with the digital age, recent legislative mandates, and evolving legal interpretations of transparency. The proposed rule, set to replace regulations largely unchanged since the early 1990s, underscores a broader federal effort to enhance accessibility and efficiency in government information disclosure.
Background and Rationale for Revision
The Access Board's existing FOIA regulations, primarily established in 1980 and last revised in 1990, predated many significant advancements in both technology and statutory requirements for federal agencies. The Board acknowledges that while its FOIA program has operated in line with legislative and administrative directives, formal regulatory updates are now critical. This NPRM directly addresses these gaps, seeking to incorporate the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016, both of which introduced substantial changes to how federal agencies must process and disclose information. Furthermore, the proposed rule aims for consistency with current Department of Justice guidance on agency FOIA regulations and integrates lessons from relevant case law.
Modernizing Information Access Procedures
A core aspect of the proposed revisions involves streamlining procedural language and updating practices to leverage current technology. This includes clarifying how requesters can submit information requests, find contact details for FOIA personnel, and adequately describe desired records. The new rules emphasize the agency's commitment to assisting individuals in formulating sufficiently detailed requests, aiming to reduce barriers to access. Proactive disclosure requirements are also reinforced, with the agency indicating that many publicly inspectable records will be available directly on its website.
Expedited Processing and Response Timelines
The NPRM reiterates the statutory timeframes for responding to FOIA requests and outlines criteria for expedited processing. The Access Board will approve expedited requests demonstrating a "compelling need," as defined by federal statute. This includes situations posing an imminent threat to life or physical safety, or an urgent need to inform the public about federal government activity by a person primarily engaged in disseminating information. The Board also anticipates rare approvals for other urgent cases demonstrating a similar substantiated level of urgency. Procedures for aggregating requests are also addressed, ensuring fair and efficient processing.
Handling Confidential Commercial Information
A significant section details the procedures for handling confidential commercial information. This aspect is crucial for entities submitting proprietary data to the Access Board. The proposed rule outlines how submitters should mark such information to alert FOIA personnel to potential protection under FOIA Exemption 4. It also establishes clear notification procedures: when the agency will inform submitters that their information is responsive to a FOIA request, what the notification will include, and when such notice might not be sent. Importantly, the NPRM explains the process for submitters to object to disclosure and affirms that the Access Board will consider these objections before making a final decision. These procedures are mandated by Executive Order 12600, issued in 1987, which requires agencies to provide notice and an opportunity to object before disclosing confidential commercial information.
Administrative Appeals and Judicial Review
The proposed regulations clarify the process for administrative appeals of adverse FOIA decisions. Requesters must adhere to specific format and content requirements for their appeals. The rule also highlights the availability of mediation services through the Office of Government Information Services of the National Archives and Records Administration, offering an alternative to litigation. Critically, the NPRM affirms the general requirement for requesters to exhaust administrative remedies by submitting a timely appeal before seeking judicial review in federal courts.
Adjusting the Fee Schedule for Transparency
One of the more tangible changes for requesters involves the updated fee schedule. Recognizing that its search and review fees had remained static since 1987, the Access Board proposes to revise these charges. Instead of fixed dollar amounts, fees will now be based on the prevailing salary rates plus 16 percent for benefits for different categories of personnel involved in the search and review process. These categories include clerical staff at a GS-9/step 5 equivalent, professional or managerial personnel at a GS-14/step 5 equivalent, and senior executive personnel and Board members at an EX-Level IV equivalent. To simplify the process and ensure fairness, the Board proposes rounding down search and review time to the nearest hour. The duplication fee, currently $0.20 per page, is proposed to remain unchanged, reflecting the Board's current cost estimates. This adjustment aims to ensure the Board can recover the full direct costs associated with processing requests while adapting to changes in federal salaries over time.
Public Comment Period
The Access Board is seeking public comments on these proposed revisions, with a deadline of September 3, 2026. This period allows stakeholders to provide feedback on the proposed procedural changes and fee adjustments.
