March 3, 2022

Office of Special Counsel

1730 M Street NW, Suite 218

Washington, DC 20036-4505

RE: FY2022 Proposed Reg Comments

Dear Office of Special Counsel: 

Public Citizen writes to comment on the Office of Special Counsel’s notice of proposed 

rulemaking entitled “Prohibited Personnel Practices, Disclosures of Information Evidencing

Wrongdoing, FOIA, Privacy Act, and Disability Regulations to Conform with Changes in Law 

and Filing Procedures and Other Technical Changes,” 87 Fed. Reg. 5409 (February 1, 2022). In 

particular, these comments address the proposed changes concerning the Freedom of Information 

Act (FOIA) and the proposed changes concerning the filing of complaints and disclosures of 

information evidencing wrongdoing.

Public Citizen is a nonprofit consumer advocacy organization founded in 1971. On behalf 

of its nationwide membership, Public Citizen advocates before the courts, legislatures, and 

administrative agencies for safer consumer products, corporate accountability, worker protection,

and openness in government decision making. 

Changes Concerning FOIA

Since its founding, Public Citizen has regularly used FOIA to request records related to its 

advocacy efforts. Public Citizen submits these comments to address five aspects of the proposed 

regulations that, if finalized, would place unnecessary burdens on FOIA requesters: 1) the 

proposed requirement that FOIA requests contain the words “FOIA Request”; 2) the proposed 

provision providing that making a FOIA request is an agreement to pay all applicable fees; 3) 

confusing and inconsistent language in the opening paragraph of the proposed section on FOIA 

fees; 4) the proposed provision allowing OSC to charge an additional fee when it provides a special 

service at its discretion; and 5) the proposed standards for obtaining a public-interest fee waiver.

I. If a request is clearly a FOIA request, it should be processed regardless of 

whether it states “FOIA request.”

The proposed regulations state that “the request letter and envelope or email subject line should 

be clearly marked ‘FOIA Request’” and that “[r]equests must state in the letter, email, or other 

prescribed electronic method the words ‘FOIA Request’ or ‘FOIA/Privacy Request.”’ Proposed 

§§ 1820.2(a)(2), (b) (emphasis added). The mandatory nature of this language contrasts with the 
FY2022 Proposed Reg Comments Public Citizen 

language in the current regulation, which states that “[f]or the quickest handling,” the letter and 

envelope or subject line “should be clearly marked ‘FOIA Request.’” 5 C.F.R. § 1820.2(a)(2). 

Agencies have “a duty to construe a FOIA request liberally.” Inst. for Just. v. Internal Revenue 

Serv., 941 F.3d 567, 572 (D.C. Cir. 2019) (citation omitted). Accordingly, the final rule should 

make clear that, although it may be a best practice to include the words “FOIA Request,” those are 

not magic words that must be used for a request to be processed. If a request is received by the

agency and understood to be a FOIA request, it should be processed even if it is not labeled “FOIA 

Request.” 

II. FOIA requesters whose fee waiver requests are denied and requesters who agree 

only to pay a specified amount of fees should not be deemed to have agreed to 

pay all applicable fees.

Current § 1820.2(c) provides that a FOIA requester will be deemed to have agreed to pay 

applicable fees up to $25 “unless the requester asks for a waiver of fees or specifies a willingness 

to pay a greater or lesser amount.” Proposed § 1820.2(c) changes this language to say that a FOIA 

requester will be deemed to have agreed to pay all applicable fees “unless the Special Counsel 

waives fees, the requestor is exempt, or the requestor otherwise qualifies for a waiver of fees.” 

Thus, under the proposal, a FOIA requester who seeks a fee waiver that is denied will be deemed 

to have agreed to pay all applicable fees. Moreover, FOIA requesters will be deemed to have 

agreed to pay all applicable fees even if their FOIA requests specify a willingness to pay only a 

certain amount.

This proposed provision may have a chilling effect on FOIA requesters. Although we 

recognize that proposed § 1820.7(d) requires the agency to notify the requester of anticipated fees 

over $25, some requesters may not be able to afford $25 and may be discouraged from filing a 

FOIA request out of fear that they will be liable for that amount, even if they specify a lower 

amount in their request. 

The final rule should require the agency to notify requesters whose fees waivers are denied of 

that denial and provide them the opportunity to specify the amount of fees they are willing to pay 

before any fees are incurred. It should also respect any specification in the FOIA request of the 

amount of fees the requester is willing to pay. 

III. The opening paragraph of the proposed regulation on FOIA fees contains 

confusing and inconsistent language.

Proposed § 1820.7(a) states that “OSC provides the first two hours of search time and the first 

100 pages of duplication free of charge to all requestors. In exceptional circumstances, OSC may 

charge fees after determining that unusual circumstances exist.” This proposed language is 

confusing. “Unusual” and “exceptional” circumstances are different concepts in FOIA, and neither 

set of circumstances allows the agency to charge for the first two hours of search time or first 100 

pages of duplication. The final rule should omit the sentence stating that “[i]n exceptional 

circumstances, OSC may charge fees after determining that unusual circumstances exist.”
FY2022 Proposed Reg Comments Public Citizen 

In addition, § 1820.7(a) should make clear that requesters in any fee category can receive a 

waiver or reduction of fees under 5 U.S.C. § 552(a)(4)(A)(iii). Proposed § 1820.7(a) states that 

OSC charges commercial requesters search, review, and duplication fees, unless the requesters

receive a waiver or reduction of fees. The proposed regulation then states that the agency charges 

educational and non-commercial scientific institutions and representatives of the news media 

duplication fees. Unlike the sentence addressing commercial requesters, however, this proposed 

provision does not state that such requesters may receive a waiver or reduction of fees. Likewise, 

the proposed regulation states that OSC charges “all other requesters” search and duplication fees 

but does not acknowledge that those requesters may receive a fee waiver or reduction. The final 

rule should be consistent and should acknowledge that educational institutions, scientific 

institutions, members of the news media, and all other requesters, as well as commercial 

requesters, may be entitled to a waiver or reduction of fees under 5 U.S.C. § 552(a)(4)(A)(iii).

IV. FOIA requesters should not be charged an additional fee for special services 

without permission.

Proposed § 1820.7(e) states that OSC will “ordinarily charge an additional fee when OSC 

chooses as a matter of administrative discretion to provide a special service, such as shipping 

records by other than ordinary mail.” The current regulations contain a similar provision. See 5 

C.F.R. § 1820.7(f). The additional fee, however, may be a burden to a FOIA requester, particularly 

if that requester is an individual or a non-profit organization. The final rule should state that OSC 

will not charge additional fees for special services that are not necessary to respond to the FOIA 

request without receiving advance approval from the FOIA requester.

V. The requirements for a waiver or reduction of fees are overly narrow.

Two aspects of the proposed regulations regarding public interest fee waivers are overly 

narrow. First, proposed § 1820.7(h)(2)(ii) provides that whether the release is likely to contribute

to an understanding of government operations or activities turns on whether the “releasable 

portions of the requested records” are meaningfully informative about government operations and 

activities. A requester’s entitlement to a public interest fee waiver, however, “should be evaluated 

based on the face of the request” and should not turn on whether the records are ultimately found 

to be “exempt from disclosure” unless they are “patently exempt documents.” Carney v. U.S. Dep’t 

of Just., 19 F.3d 807, 815 (2d Cir. 1994); see also, e.g., Citizens for Resp. & Ethics in Washington 

v. U.S. Dep’t of Just., 602 F. Supp. 2d 121, 125–28 (D.D.C. 2009). Accordingly, the final rule 

should exclude the reference to the “releasable portions” of the requested records.

Second, proposed § 1820.7(h)(3)(ii) provides that, in determining whether the disclosure is 

“not primarily in the commercial interest of the requester,” OSC will consider “[w]hether any 

identified public interest is greater in magnitude than that of any identified commercial interest in

release.” The relevant question under the statute, however, is whether the commercial interest 

outweighs the public interest, not whether the public interest outweighs the commercial interest. 

For disclosure to be “not primarily in the commercial interest of the requester,” 5 U.S.C. 

§ 552(a)(4)(A)(iii), the public interest in disclosure needs to be only equal to the commercial 

interest. It does not need to be “greater in magnitude than” the commercial interest, and the final 

rule should not require it to be. The final rule should be revised accordingly.
FY2022 Proposed Reg Comments Public Citizen 

Changes Concerning the Filing of Complaints and Disclosures of Information Evidencing 

Wrongdoing

Public Citizen is joining the Make It Safe Coalition’s comments regarding the whistleblower 

elements of this proposed rule. However, we would like to reiterate the following points:

Regulations are designed to implement statutes, setting forth practical guidance for how the 

law will be interpreted and administered. 

Under 5 U.S.C. § 1213, OSC is charged with processing complaints and investigating cases 

where a federal employee whistleblower discloses wrongdoing by the federal agency employer. 

Part 1800 of the proposed regulation details how this section of the code will be implemented. We 

are concerned that section 1800 of the proposed regulation fails to put appropriate limits on OSC 

discretion in processing disclosures of agency wrongdoing. Without these limits, individual 

whistleblowers cannot be sufficiently informed of their rights under the law and the necessary 

steps to enforce those rights. 

Only a small percentage of the written disclosures of agency wrongdoing submitted to OSC 

actually result in a field investigation of documents and witnesses. The proposed regulation 

provides no guidance on the types of evidence or information required for OSC to initiate a field 

investigation. The decision is left entirely to the discretion of the OSC representative, making case 

progression inconsistent and seemingly arbitrary. 

The problem continues with the decision to refer the case to the agency head. The statute 

requires OSC to “determine whether there is a substantial likelihood that the information 

discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, 

abuse of authority, or substantial and specific danger to public health and safety” before referring 

the case to the agency head for further investigation. The proposed regulation, however, provides 

no explanation or description of evidence necessary to meet the “substantial likelihood” test. 

Without guidance on evidentiary requirements, decisions on case investigation and referral are 

made at the discretion of OSC without any accountability. Moreover, neither employee 

whistleblowers, nor the stakeholder community, are given guidance on how to provide the 

information necessary to meet the “substantial likelihood” test. Thus, whistleblowers are unable 

to effectively and efficiently pursue their rights. Moreover, OSC is handicapped in its ability to 

successfully oversee agency ethics.

Recommendations 

Section 1800 of the proposed regulation should set clear guidelines for OSC decision-making 

in case investigations and require that information be made available to federal employee 

whistleblowers. In addition, these employees must be given useful, accessible tools regarding 

vindicating their rights, including guidance in a language that they can understand. 
FY2022 Proposed Reg Comments Public Citizen 

We request that the Special Counsel convene a public town-hall meeting to hear from 

employee and management stakeholders to improve these proposed regulations in a manner that 

effectively protects the rights of whistleblowers and improves the management of OSC 

investigations based on federal employee disclosures. Public stakeholder dialogue could help 

create an experience-based record to address issues that are missing from the current regulatory 

proposal. 

***

Thank you for considering these comments. Please feel free to contact us with any 

questions.

Sincerely,

Susan E Harley

Managing Director, Congress Watch

Public Citizen

Juley Fulcher 

Worker Health and Safety Advocate

Public Citizen