Where Can I Get Basic FOIA Facts?

Take a look inside for some facts on where to find what basic  FOIA information!  (NARA Identifier 7859193)

Take a look inside for some basic facts on where to find what basic FOIA information! (NARA Identifier 7859193)

A little over a month ago, 18F—the digital services shop at the General Services Administration that’s modeled after tech-sector start-ups—released openFOIA. This website gives requesters a central location to learn how to make Freedom of Information Act (FOIA) requests to any of the 100 federal departments and agencies that process public requests for records.

The release of openFOIA helps meet one of the commitments to “Modernize the FOIA” included in the second U.S. Open Government National Action Plan. As we let our blog readers know recently, these commitments are a part of a much larger international effort to make governments more open and accountable. 18F developed openFOIA in consultation with the Department of Justice (DOJ) and made its work available to the public via GitHub.

OpenFOIA has some things in common with existing government websites that are intended to help FOIA requesters. In particular, it can be easy to confuse the new site with FOIA.gov, a DOJ-operated site and FOIAonline, an online portal requesters can use to make and track requests at 11 departments and agencies.

To help clear up any confusion between the sites, here’s a chart with some of their key features and uses:

Website_chart

Do you have any suggestions for how we can make it easier for the public to understand and use FOIA? Let us know in the comments!

Posted in About FOIA, FOIAOnline, Open Government | Leave a comment

FOIA Advisory Committee Surveys: Examining the FOIA Landscape

Photograph of District Ranger Harley Hamm Using a Surveying Compass

Surveying the FOIA landscape! (NARA Identifier: 2130973)

As we’ve previously mentioned, two subcommittees of the FOIA Advisory Committee — Oversight and Accountability, and Fees — have developed surveys to learn more about the areas they are examining. These surveys were recently sent to FOIA Public Liaisons (FPLs) and Federal FOIA professionals across the government.

The purpose of the FPL survey is to obtain information about the role of FPLs in the FOIA process and how the position functions in the Executive Branch. While the FPL role was described in an Executive Order (Executive Order 13392, Improving Organization Disclosure of Information) and legislation (the OPEN Government of Act of 2007), the Committee has observed that how FPLs work within a particular agency seems to vary widely. The survey results will provide valuable insight into how FPLs are accomplishing their statutory role of reducing delays, increasing transparency, understanding the status of FOIA requests and resolving FOIA disputes.

FOIA fees remain a source of much confusion for requesters and agencies. The goal of the FOIA Fees survey is to gather information about the administration of FOIA fees and its impact on the Executive Branch. The Fees Subcommittee hopes that the results of the survey will suggest new approaches to this tricky FOIA issue.

OGIS and the FOIA Advisory Committee look forward to sharing the results of the surveys with the public; in the meantime, the draft FPL and draft fees surveys are available on the FOIA Advisory Committee’s website.

If you a FOIA Public Liaison, you should have received both surveys by email within the last week; other Federal FOIA professionals should have received the FOIA Fees survey from a supervisor. We asked that FPLs forward the survey to the FOIA professionals within their organizations. If you fall into either of these categories but did not receive the survey(s), please contact Christa Lemelin at christa.lemelin@nara.gov. The survey closes on June 22, 2015. Thank you in advance to those of you participating in the surveys!

Please visit the FOIA Advisory Committee’s webpage, including the Contact Us/Submit Comments page, for information about the Committee and how you can get involved and make your voice heard by submitting comments to the Committee. We post public comments submitted to the Committee and we would love to hear your thoughts on improving FOIA oversight and administration.

Posted in About FOIA, Customer service, Fees, FOIA Advisory Committee, FOIA Public Liaisons | 3 Comments

How Would You Modernize FOIA?

Have an idea for how to improve FOIA? Let us know! (NARA Identifier 521689)

Have an idea for how to improve FOIA? Let us know! (NARA Identifier 521689)

As we’ve noted previously, the United States is a part of the Open Government Partnership (OGP), a global effort to make governments more open and accountable to the public.  Countries that participate in OGP are required to develop and carry out action plans that include concrete commitments to make the government—you guessed it—more open.

These plans are called National Action Plans and they generally include a range of commitments the government will carry out over a two-year period. The United States is reaching the halfway point of its second National Action Plan, and is already beginning to think about what should go into the third plan.

This is where we need your help.

As you might remember, the first two U.S. National Action Plans included commitments to modernize administration of the Freedom of Information Act (FOIA)— including one that led to the creation of the federal FOIA Advisory Committee. The Office of Science and Technology Policy (OSTP), with help from the General Services Administration, recently launched an effort using the collaborative web site hackpad to gather ideas from anyone inside or outside government about how we can continue to make FOIA work better. (You will need to create an account on that site before viewing and contributing to content on that platform.) Ideas can also be submitted via Twitter to @OpenGov or email to opengov@ostp.gov.

A number of factors will go into the final decision about what commitments make it into the third National Action Plan. We encourage you to read OSTP’s blog post to learn more about OGP and OSTP’s guidance on commitments.

Posted in Uncategorized | 2 Comments

FOIA Needs YOU: Apply Today for the FOIA Advisory Committee

Apply to be a member of the FOIA Advisory Committee by June 23! (NARA Identifier 534704)

Apply to be a member of the FOIA Advisory Committee by June 23! (NARA Identifier 534704)

Do you love the Freedom of Information Act (FOIA) and want to help improve it? If so, read on – there may be a role for you on the Federal FOIA Advisory Committee!

We hope you already know that the Committee is a diverse group of FOIA experts from inside and outside the government who share the goal of tackling some of FOIA’s trickiest issues. Currently, the Committee’s subcommittees are reviewing FOIA’s oversight and accountability mechanisms, possible improvements to FOIA’s fee structure, and making agency records publicly available without specific requests from the public..

In keeping with the terms of the Committee’s charter, the National Archives and Records Administration (NARA) is currently accepting applications for a representative of a non-government organization (NGO) that advocates on FOIA matters. NGOs that advocate on FOIA matter that are or have been represented on the Committee include: the Campaign for Accountability, Citizens for Responsibility and Ethics in Washington (CREW), the Electronic Privacy Information Center (EPIC), and the National Security Archive.

The Committee meets quarterly at NARA’s downtown DC location. However, you do not have to be located in the DC area to apply. People across the country rely on FOIA to access government records, and we want the Committee to reflect the diversity of requesters. Individuals interested in serving on the Committee must comply with the Committee’s bylaws.

To apply (or to nominate someone else), please send an email to ogis@nara.gov by Tuesday, June 23, 2015. The subject of the email should be your full name (last name, first name), and your email should include the following information:

  1.  A short paragraph or “bio” (no more than 250 words, please) summarizing your resume or otherwise highlighting the contributions you (or your nominee) would bring to this committee;
  2. A resume or curriculum vitae; and
  3. Your full contact information (or that of the nominee).

We look forward to hearing from you!

Posted in Uncategorized | Leave a comment

Dispute Resolution Skills for FOIA Professionals Training Session: June 24, 2015

All in our places with sunshiny faces. Join us for a fun day of training. (NARA identifier 554838)

All in our places with sunshiny faces. Join us for a fun day of training. (NARA identifier 554838)

Do you find yourself locked in disputes with FOIA requesters (or agency colleagues)? Would you like to learn constructive ways to resolve or avoid disputes in the future?

OGIS will present a training session designed to help FOIA professionals develop dispute resolution skills on Wednesday, June 24, 2015 at the Archives building on Constitution Ave between 7th and 9th streets NW in Washington, D.C. This free, all-day session is appropriate for anyone in your agency who works with FOIA, including FOIA Public Liaisons, program managers, FOIA processors, FOIA attorneys and others. Participants will develop a working knowledge of Alternative Dispute Resolution techniques, learn how working with OGIS can help resolve disputes, practice active listening and good communication, and develop strategies for working with difficult people.

If you would like to register for this program, please visit our online training form. Space for this training program is extremely limited and the program fills up very quickly, so please do not wait to register.

Posted in Uncategorized | 2 Comments

(FOIA) Appeal is in the Eye of the Beholder

Whether an agency's decision is an "adverse determination" can depend on how you look at an issue. (NARA identifier 6365954)

Whether an agency’s decision is an “adverse determination” can depend on how you look at an issue. (NARA identifier 6365954)

It’s easy for requesters and agencies to agree that administrative appeals are an important part of the Freedom of Information Act (FOIA) process. It’s not as easy for agencies and requesters to agree on what warrants an appeal.

FOIA requires an agency to notify requesters of their right to appeal “any adverse determination” (5 USC 552 § (a)(6)(A)(i)). This language seems pretty straight-forward: if an agency makes a decision that the requester views as adverse, the requester should be given the right to appeal the decision. Let’s go through a few examples to see how this provision plays out in practice.

Scenario 1: The Federal Bureau of Investigation denies Papa Bear’s request for records concerning Goldilocks.

Scenario 2: The Department of Housing and Urban Development withholds some information from records in response to a request from Old Woman Who Lived in a Shoe concerning redevelopment grants.

Scenario 3: The Department of Agriculture denies a request for expedited processing and for a fee waiver in response to a request from Chicken Little for records related to “the sky falling.”

Scenario 4: The Environmental Protection Agency (EPA) releases five pages in full to Suzie in response to a request for records about seashells on the seashore. The EPA classified Suzie as a commercial requester.

Scenario 5: The EPA releases 20 pages in full to Little Red Riding Hood in response to a request for records about wolves.

Scenario 6: The Occupational Safety and Health Administration sent a “no records” response to Jack and Jill in response to a request for records concerning hills and water pails.

How many of the requesters in the above examples should have been granted appeal rights by the agency? The answer: all of them.

It is easier to spot the “adverse determination” in some of the above examples than in others: for example, it is pretty evident that a requester should be given appeal rights if a record is denied or information is withheld (scenarios 1 and 2). Denying a request for expedited processing or a fee waiver is clearly an adverse determination (scenario 3). Placing a requester in an unfavored fee category might also be seen by the requester as an “adverse determination” even if the amount of fees charged does not change (scenario 4). In the case of a “no records” response (scenario 6)— even in the case of a full release of records (scenarios 4 and 5), the requester might dispute the adequacy of an agency’s search.

And there’s one more scenario that we at OGIS have observed: even if the agency does not provide appeal rights in the final appeal letter, a requester is still entitled to appeal if he’s dissatisfied.

We have written before about how appeals are an “integral part of the FOIA,” and why we encourage requesters to go through the appeals process before bringing a dispute to OGIS.  One reason we always advise requesters to appeal is that it preserves a requester’s rights under the law. Critically, it also provides agency FOIA professionals the opportunity to re-evaluate all of the decisions made in the initial determination—from the adequacy of the search to the application of any exemptions.

The bottom line is that agencies should be careful to let requesters know about their right to appeal, even if the agency does not think it has made an “adverse determination.” Requesters should also not be shy about going through the administrative appeals process if they have a dispute with any part of the agency’s decision.

Posted in Best practices | Leave a comment

What the Government’s Alphabet Soup Means for You

There are few things in the federal government that do not go by a three letter acronym—or, in government-speak, a TLA. As we at OGIS (that’s the Office of Government Information Services!)  are keenly aware, though, government acronyms are not limited to three letters—and they can refer to a  wide variety of things. One acronym that bears special mention is FOUO, aka “For Official Use Only.”

The federal government's alphabet soup can sometimes be confusing. (NARA Identifier 6402090)

The federal government’s alphabet soup can sometimes be confusing. (NARA Identifier 6402090)

FOUO is a designation that some agencies use to tell employees how information bearing this mark should be handled. FOUO handling procedures vary from agency to agency, sparking confusion. FOUO is not the only designation that can be confusing: a May 2009 Presidential Memorandum cited the existence of more than 107 unique markings and over 130 different labeling or handling processes and procedures for documents that are unclassified, but are considered sensitive. These markings collectively are referred to by one of two TLAs: CUI (Controlled Unclassified Information) or SBU (Sensitive But Unclassified).

Our colleagues in the National Archives’ Information Security Oversight Office lead an effort to standardize the use of CUI across the federal government. For people who care about access to government records, though, it should be clear that the letters that matter most are F-O-I-A.

Section § 2002.27 of the May 8, 2015 proposed rule on CUI makes it very clear that CUI designations do not dictate whether a record should be withheld under FOIA. This statement is in line with provisions in the executive order creating the CUI program (EO 13556, Section 2(b)) and joint guidance from the CUI office and the Department of Justice’s Office of Information Policy from July 2014 (which superseded similar guidance from November 2011).

Of course, memos and rules do not execute themselves. One of the best ways to make sure that CUI designations do not hurt your ability to access government records using FOIA is to increase awareness of the issue. We encourage you all to take a look at the CUI proposed rule and comment before the July 7 deadline. If you are interested in the topic, please also consider attending the open meeting on CUI scheduled for May 28 at the National Archives in Washington, DC.

Posted in About FOIA, National Archives and Records Administration | Leave a comment

OGIS Acting Director Testifies before Senate Judiciary Committee

OGIS' Acting Director testified before the Senate Judiciary Committee on May 6, 2015.  (NARA Identifier 7853405)

OGIS’ Acting Director testified before the Senate Judiciary Committee on May 6, 2015. (NARA Identifier 7853405)

OGIS’s Acting Director, Nikki Gramian, took a turn in the big chair before the Senate Judiciary Committee on May 6 to update the panel on OGIS’s activities over the last year.  The hearing also included testimony from Director of the Department of Justice Office of Information Policy Melanie Pustay; State Department Chief FOIA Officer Joyce Barr; Associated Press’ General Counsel Karen Kaiser; and the Director of the National Security Archive at George Washington University Tom Blanton.

Ms. Gramian’s testimony covered many of the topics we’ve blogged about over the past year, including the establishment of the federal FOIA Advisory Committee, and the launch of our new agency assessment program. She also took the opportunity to talk about the importance of agencies having an appropriate routine use in place for both our mediation and review work.

For those of you who are not familiar with “an appropriate routine use,” we essentially mean that the agency has notified the public that it might share, as a matter of routine, information protected by the Privacy Act with another agency in the course of business. An agency notifies the public that it will share certain types of information by updating what is known as its Privacy Act Systems of Records Notice, or—to throw out the commonly used government acronym—SORN. Since FOIA case files include personally identifiable information, in order for an agency to talk about a FOIA case with OGIS, it must have updated its SORN to note that FOIA case files will be shared with OGIS. If an agency has not updated its SORN accordingly, we obtain consent from the requester to allow us to talk to the agency about the case.

Here’s how Ms. Gramian explained how the lack of a routine use creates logistical challenges for OGISs’ work:

During an agency assessment, our review team will evaluate a sample of agency FOIA case files against FOIA’s requirements and selected DOJ and OGIS best practices. If the agency has updated its SORNs to include a routine use for the disclosure of records to OGIS, the agency is permitted to share case files without taking additional steps. However, the absence of an appropriate routine use requires additional administrative steps OGIS and the agency must take to share the information. For example, OGIS or the agency would have to obtain the consent of the individual to whom the records pertain for each of the case files OGIS would like to review; alternatively, the agency must conduct a page-by-page and line-by-line review of the case files to insure that only the information required to be released pursuant to the FOIA is given to OGIS.

In addition, in the course of our mediation work, when an appropriate routine use is not available, our practice is to seek the individual’s consent to allow OGIS and the agency to share information. However, when an agency is seeking OGIS’s assistance with a dispute, the agency must obtain consent from the requester before contacting us. This can be an obstacle, particularly in situations in which an agency seeks our assistance with a requester with whom communications have broken down.

As we’ve noted before, seven of 15 Cabinet-level departments and six agencies have OGIS language in their Privacy Act SORNS.

To learn more about the hearing, check out the saved webcast or download all of the witness’ testimony and senators’ opening statements here: http://www.judiciary.senate.gov/meetings/ensuring-an-informed-citizenry-examining-the-administrations-efforts-to-improve-open-government.  You can also download all of OGIS’s testimony before Congress here: https://ogis.archives.gov/about-ogis/congressional-testimony.htm.

Posted in About OGIS | Leave a comment

Thinking globally

Thirty-three information commissioners—a.k.a freedom of information ombudsmen—from 25 countries gathered April 21-23 for the 9th International Conference of Information Commissioners to discuss transparency issues and share successes and challenges. It was a great honor to represent OGIS at the conference, hosted by the Chilean Transparency Council, in Santiago, Chile.

FOI ombudsmen from around the globe met recently in Chile.  (NARA Identifier 2581365)

Freedom of information ombudsmen from around the globe met recently in Chile. (NARA Identifier 2581365)

Among the themes of the conference, which coincided with the sixth anniversary of the enactment of Chile’s transparency law, were challenges for universal exercise of the right to access public information and the importance of government and civil society partnerships.

Chilean President Michelle Bachelet opened the conference, noting that transparency provides “democratic legitimacy” and makes “Chile a country where the public and private sectors are no longer under suspicion” of such ills as corruption, whether real or perceived.

President Bachelet noted that just 19 percent of non-government workers in Chile know about the country’s six-year-old right-to-access law. It would be interesting to know the comparative figure for the U.S., particularly given that our law turns 50 next year, old enough to be the grandfather of Chile’s law.

During a presentation, I shared that although OGIS helps hundreds of requesters individually each year, one challenge we face is reaching disadvantaged requesters as groups and connecting with populations who don’t even know about their right to access.

Civil society, can, and often does, play an enormous role in helping disadvantaged populations understand and exercise their right to access. One model, I suggested, is the National Archives and Records Administration’s FOIA Advisory Committee, made up of FOIA experts from both inside and outside the government working to improve the FOIA process. Although not mandated specifically with helping disadvantaged populations such as the poor or the uneducated, cooperation between civil society and government goes a long way toward bettering the process for all.

I left the audience with a question: “How, I wonder, would right of access improve if we taught FOIA to all students—not just journalism and law students—as part of a robust civil education program?”

Information commissioners met separately for a day at the United Nations’ Economic Commission for Latin America and the Caribbean. Four working groups met on topics such as comparative jurisprudence and comparative analysis of transparency policies. I participated in the group examining mediation as a tool to advance the right of access to public information. It was interesting to see that mediation is a key service offered by FOI ombudsmen’s offices around the world.

Thanks to the help of two excellent translators, our group of about 10 commissioners jumped back and forth between Spanish and English discussing the importance of mediation in helping resolve disputes, ultimately making the FOIA process work better for all—requesters and agencies. Although there were some disagreements and some differences in the way various commissioners’ offices work, our group agreed that

  • alternative dispute resolution (ADR) is an important tool for the right to access public information and must be conducted within the framework of that right;
  • ADR must allow requesters and agencies to participate in the solution of their own conflict;
  • ADR in the framework of right to access information is unique; and
  • The ADR process (as opposed to the outcome) must be evaluated.

The group also agreed to share best practices for providing ADR in the context of the right to access public information.

It’s great to have colleagues from around the globe who share OGIS’ commitment to helping the freedom of information process work better for all—requesters and agencies! I returned to the office thinking of new and different ways to approach our work, particularly as our agency assessment program grows.

Posted in About OGIS, FOIA Advisory Committee, FOIA around the world | Leave a comment

Let’s Talk About Estimated Dates of Completion

In 2007 Congress added a provision into the Freedom of Information Act (FOIA) that requires agencies to provide a requester with an estimated date by which the agency expects to  complete work on a request, when the requester asks for one. This requirement helps the requester better understand the agency’s FOIA process and gives the requester a more accurate picture of when he/she will receive a response.

We understand that estimating a date of completion is more difficult than just looking at a calendar (like this Kiowa Anko calendar). But explaining more about the estimates will help improve communication with requesters. (NARA Identifier 523631)

We understand that estimating a date of completion is more difficult than just looking at a calendar (like this Kiowa Anko calendar). But explaining more about the estimates will help improve communication with requesters. (NARA Identifier 523631)

We’ve previously discussed  how important it is for an agency to provide an estimated date of completion if the agency wants to avoid a lawsuit and we’ve even given agencies a couple of tips on how they can come up with an estimated date of completion.

While it is clear that providing estimated dates of completion is a good idea – both from a compliance and customer service standpoint – we understand that actually coming up with a date can feel like a moving target. Further, we hear from some FOIA professionals that they are hesitant to provide an estimated date of completion because requesters might treat the estimate like a firm deadline.

We understand this concern, and we have observed situations in which requesters interpreted estimated completion dates as deadlines. However, we have also observed that by providing a requester with an explanation of the factors that impact processing time, that requester develops a more realistic expectation of when he/she might receive a response .

Lots of factors go into how long it takes to process a request, including not only the complexity and possible number of responsive records to the request in question, but also the complexity and number of possible responsive documents to requests that are ahead of the request in question in the agency’s queue. In order to help he requester understand  that an estimate is just that – an estimate—OGIS includes the following explanation in our correspondence responding to estimated date of completion cases:

Please know that this date roughly estimates how long it will take the agency to close requests ahead of your in the queue and complete work on your request. The actual date of completion might be before or after this estimate based on the complexity of the requests in the agency’s queue.

If you like this language, please feel free to use it in your communication with requesters. Have any other suggestions or tips to handle requests for estimated dates of completion? Let us know in the comments section!

Posted in About FOIA, Best practices, Customer service | Leave a comment