(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.

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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.

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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

Let’s Make It Easier for Requesters to Use the FOIA Process

It should be easy to find an agency's FOIA regulations online. (NARA Identifier 6482991

It should be easy to find an agency’s FOIA regulations online. (NARA Identifier 6482991

Agency Freedom of Information Act (FOIA) regulations are one of the most important resources available to those requesting information from the federal government. As we’ve mentioned in the past, agency FOIA regulations are essentially the rule book the agency uses to process a request.  And, as anyone who has ever played a new board or card game knows, it is much easier to win when you know the rules of the game.

FOIA regulations touch on a wide variety of topics, some of which the agency must address in the regulation and some of which they may address (see our blog post on the importance of agency FOIA regulations for a full explanation of what is in an agency’s FOIA regulation, and why it matters). All regulations include information essential to a successful FOIA request, including where to send an initial request and the time limit for appealing an adverse determination.

Important though they may be, FOIA regulations are frequently very difficult for requesters to find. Some requesters search for agency FOIA regulations in the Electronic Code of Federal Regulations, or eCFR. One way to search the eCFR for the applicable regulations is do a simple search for the agency’s name and then click the link to “Refine this search” and narrow the results by adding  “Freedom of Information Act” or “5 USC 552” into the query (5 USC 552 refers to FOIA’s location in the US Code). Requesters can also find links to agency regulations in the eCFR by visiting the results of National Security Archive’s 2013 audit of agency FOIA regulations; please note, however, that the National Security Archive’s table showing when the regulation was last updated might be out of date.

There is a very easy step agencies can take to help requesters better understand the process the agency uses, help make sure requests are routed to the correct office, and make sure requesters are aware of any other requirements under the law: post a link to the agency’s regulation on the agency’s FOIA website. Posting a link to the regulation in the eCFR is a good first step. However, as we noted in our most recent agency assessment report, posting the agency’s regulation as a searchable PDF or in HTML is even more user-friendly.

Do you have any other ideas for simple steps agencies can take to help the public use the FOIA process? Let us know in the comments!

Posted in Best practices, Customer service, Government information, Regulations | Leave a comment

Advisory Committee Meeting Set for April 21: Reserve Your Seat Now!

Unfortunately, there is no popcorn allowed in the Archivist's Reception Room, but we still hope you will join us for the April 21 FOIA Advisory Committee meeting! (NARA Identifier 6801620

Unfortunately, there is no popcorn allowed in the Archivist’s Reception Room, but we still hope you will join us for the April 21 FOIA Advisory Committee meeting! (NARA Identifier 6801620

It’s time for another meeting of the federal FOIA Advisory Committee! Be sure to reserve your seat now for our Tuesday April 21 meeting from 9 a.m. to 1 p.m. in the Archivist’s Reception Room at the National Archives and Records Administration in Washington, DC.

Similar to our last few meetings, the Committee’s subcommittees will present updates on their progress over the last few months. These subcommittees are exploring issues related to FOIA fees, oversight and accountability, and making information available to the public. Archivist of the United States David Ferriero will open the meeting.

The meeting will not be streamed live online for those who can’t attend in person (though we will post notes and video of the meeting as soon as possible). However, attending the meeting is NOT the only way to keep up with the Committee’s work or to share your views and insights with the members. You can visit the Committee’s webpage to provide feedback, and to read Committee documents, including notes from subcommittee meetings.

Posted in Fees, FOIA Advisory Committee, National Archives and Records Administration | Leave a comment

OGIS Releases Second Agency Assessment

microscope6399089

To create an agency assessment report, OGIS takes a close look at every facet of the agency’s FOIA program. (NARA identifier 6399089)

We’re pleased to release our second assessment of an agency FOIA program:  the National Archives and Records Administration’s (NARA) Special Access and FOIA unit. Regular readers will recall that we launched our agency assessment program last year to help us better fulfill our statutory mandate to review agency FOIA policies, procedures and compliance. (5 U.S.C. §§ 552 (h)(2)(A) and (B).)

As the name of the office implies, Special Access and FOIA operates slightly differently than other FOIA offices. One of the biggest differences between Special Access and FOIA and other FOIA shops is that Special Access and FOIA primarily processes records that were created by another agency. Once an agency no longer has a business need for permanently historically valuable records, it transfers legal custody of the records to NARA. (The term of art for this change in custody is accessioned.) More than 90 percent of archival records are available without a FOIA request. The office processes requests for accessioned records located at NARA’s College Park, MD, and Washington, DC, facilities. Because the records are archival, Special Access and FOIA uses a different fee system (which is set by law). The office also does not use Exemption 5, which covers several well-known legal privileges, including the deliberative process, attorney-work product, and attorney-client privileges, to withhold information.

Like our first assessment, this 12-page report includes our observations, including best practices, and our recommendations. At the end is an at-a-glance summary of our recommendations, which are intended to help improve the FOIA process for the agency and for requesters.

To prepare this report, our review team evaluated NARA’s regulations and website against the requirements of the statute, and our best practices. We also reviewed the agency’s Annual FOIA and Chief FOIA Officer reports and evaluations by other groups (from both in and outside of the government), and looked at litigation against the agency to identify any trends. (We found none.) This research was supplemented by a survey of agency FOIA professionals and in-depth interview with the office’s head, Martha Murphy. We also reviewed a sample of case files to see how the office is carrying out the law in practice.

It’s important to note that the report doesn’t touch on every facet of FOIA. That doesn’t mean we didn’t look at how the agency measures up to every statutory requirement. We did, and in an effort to create a readable report that the agency will use, we wrote only about the best practices we observed and about our recommendations for improvements. We hope that the at-a-glance summary of our recommendations will help agency FOIA managers as they plan for future improvements.

The OGIS Review Team has scheduled six other agency reviews for this fiscal year. Next up, we will focus on components of the Department of Homeland Security, starting with  the Federal Emergency Management Agency (FEMA). The other components we’ll assess  are Coast Guard , Transportation Security Administration , Secret Service , US Immigration and Customs Enforcement, and Customs and Border Protection.

Posted in About OGIS, OGIS's Reports, Review | Leave a comment

Announcing OGIS’s FY 2014 Report!

OGIS 2014 Report Cover

Fiscal Year (FY) 2015 is shaping up to be a busy one for OGIS, just as FY 2014 was. Want to learn more about OGIS’s FY 2014? Check out our annual report: Building a Bridge Between FOIA Requesters & Federal Agencies 2015 Report for FY 2014. We’ve got a nifty page-turn version on our website, along with a less-fancy PDF version.

Our two key accomplishments in FY 2014: establishing a new team to review agency Freedom of Information Act (FOIA) policies, procedures, and compliance, and establishing a new FOIA Advisory Committee.

Regular readers of this blog know we’ve posted a lot about the FOIA Advisory Committee, established under the direction of our parent agency, the National Archives and Records Administration (NARA) as part of the Second U.S. Open Government National Action Plan. (Mark your calendars–the Committee next meets on Tuesday April 21.)

Stay tuned for more information about our FOIA agency assessment program—including our report on NARA’s Special Access and FOIA program. In case you missed it, we released our first agency assessment of NARA’s Office of General Counsel in November.

Happy reading! And let us know what you think in the comments section.

Posted in About OGIS, FOIA Advisory Committee, OGIS's Reports, Review | Leave a comment

FOIA Advisory Committee Seeks Passionate Government Employee for Long-Term Relationship

We are looking for a government volunteer to help us modernize FOIA. (NARA Identifier 516016)

We are looking for a government volunteer to help us modernize FOIA. (NARA Identifier 516016)

A position for a government representative recently opened on the Federal FOIA Advisory Committee! The Committee  is a diverse group of FOIA experts from inside and outside the government with the shared goal of tackling some of FOIA’s trickiest issues.

In keeping with the terms of the Committee’s charter, we are currently accepting applications for a FOIA professional from a non-cabinet level agency. Individuals interested in serving on the Committee must comply with the Committee’s bylaws.

If you are interested in serving on the committee or nominating someone to serve on the committee, please send an email to ogis@nara.gov by Tuesday, April 14, 2015.

Please 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 also ask that you use your full name (last name, first name) as the subject line of your email. We look forward to hearing from you!

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