Let’s Keep the Sun Shining All Year Long

OGIS thanks everyone for a great Sunshine Week and applauds all efforts to keep the focus on openness all year long. (NARA Identifier 194183

OGIS thanks everyone for a great Sunshine Week and applauds all efforts to keep the focus on openness all year long. (NARA Identifier 194183

Another Sunshine Week is in the history books. As always, the celebrations served as a powerful reminder about the importance of open government laws like the Freedom of Information Act (FOIA) and what we can all do to open the government more to the public. Just because Sunshine Week is over, though, doesn’t mean that it’s too late for an agency to join in the celebration.

As we mentioned in our pre-Sunshine Week blog, a number of federal agencies joined the celebration by hosting trainings, events, and conducting other awareness-raising activities. Here are a couple of examples of great steps agencies can take to spotlight government transparency.

Recognizing FOIA Professionals

Here at OGIS, we love the idea of recognizing FOIA professionals. Saying thank you is a great way to keep your staff motivated, and remind them of the importance of their work to the operations of the agency and the government as a whole.

The Department of Justice’s Office of Information Policy (OIP) kicked off Sunshine Week with an event recognizing FOIA professionals across the government. OIP handed out awards for Exceptional Service by a FOIA Professional, Exceptional FOIA Service by a Team of Agency Professionals, Lifetime Service Award, Excellence in Management, Outstanding Contributions by a New Employee, and Outstanding Customer Service. Read more about the event, and see a full list of winners on OIP’s blog.

The Departments of Homeland Security (DHS) and Treasury also hosted celebrations for FOIA personnel. During DHS’ event, referred to as the “Oscars of the FOIA,” Delores  Barber, Deputy Chief FOIA Officer,  treated FOIA professionals to a buffet lunch, recognized a number of staff from DHS components for their hard work and contributions, and awarded a  “FOIA Processor of the Year.” Saying “thank you” to your staff does not have to be complicated affair; DHS’ event began as a small pizza party a few years back.

Leading by Example

Several times  over the past few years, we’ve discussed the importance of executive support for FOIA offices. Archivist of the United States of America David Ferriero once again showed great leadership by issuing a message to all employees reminding them that FOIA is everyone’s responsibility. Treasury’s Chief FOIA Officer also sent a similar message to all of the agency’s employees and contractors.

We hope you all enjoyed the Sunshine Week celebration, and are ready to work with us to keep the focus on the importance of open government all year long! Does your agency do anything special to recognize its FOIA staff or remind all employees that FOIA is their responsibility? Let us know about it in the comments!

Posted in Best practices, Open Government, Sunshine Week 2015 | Leave a comment

You Can Help Keep a FOIA Request Out of Court

Judges have a critical role to play in FOIA, but we should avoid clogging up the courts with FOIA cases where we can. (NARA Identifier 6010581)

Judges have a critical role to play in FOIA, but we should avoid clogging up the courts with FOIA cases where we can. (NARA Identifier 6010581)

Since OGIS opened in 2009, we’ve worked to improve the Freedom of Information Act (FOIA) process by providing mediation services and training to help agency FOIA professionals develop skills to communicate productively with requesters. We frequently see our efforts paying off as the FOIA culture shifts from being contentious and litigious to communicative and collaborative; but, we also know we have more work to do.

In December the FOIA Project, based at the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, issued a report showing that the number of FOIA lawsuits filed in Fiscal Year (FY) 2014 rose to 422, a 13-percent increase from FY 2013 when 372 FOIA lawsuits were filed and the highest number since 2001.

When talking about the number of FOIA lawsuits filed in a year, it‘s useful to put it into context of the number of FOIA requests filed each year. For each year between 2010 and 2014, the percentage of FOIA lawsuits filed compared to the number of requests overall held steady: about one half of one percent of FOIA requests ended in court. (Of course, not all lawsuits filed in a particular year are the result of requests filed that same year.)

FOIA_suit)stats

Historical data are also important for context. The number of FOIA lawsuits filed each year has actually dropped fairly significantly over the last few decades. A 1987 Administrative Conference of the United States (ACUS) Statement on Resolution of Freedom of Information Act Disputes noted that requesters filed about 500 new FOIA cases per year.

The flip side of the statistic regarding the number of lawsuits filed is the number of requests that are processed without a lawsuit. Often the process works—though the lack of a lawsuit does not mean that the process worked perfectly, or even worked at all. The reasons that FOIA requesters do not file lawsuits are as varied as the reasons that requesters do file FOIA lawsuits.

Why are FOIA Suits Filed?

Under FOIA, requesters can file a suit and ask for a judge to rule on whether a federal agency can withhold material under the law. This arrangement gives the judicial branch a critical role in the process: Courts interpret the statute and provide some oversight to the process.

A 2014 ACUS report, Resolving FOIA Disputes Through Targeted  ADR Strategies,  found “wide variation in the form and substance of FOIA disputes between requesters and agencies, in the motivation, resources, and sophistication of  requesters, and in the missions and the level of interest in agency records.” There is no one path that leads to a FOIA suit: some requesters work with agencies for years before they decide to file a lawsuit; others routinely file on the 21st day; still others file lawsuits because they believe – fairly or unfairly – that it is the only way to get an agency to pay attention to a request.

What Can I Do to Avoid Becoming Another Statistic (aka, a lawsuit)?

The number of FOIA lawsuits filed is unlikely to ever fall to zero, but there are common-sense steps that agencies can take that will help make sure lawsuits are more rare.

In 2012, we posted a list of tips for “How to Invite a Lawsuit.” Avoiding these “tips” by clearly explaining exemptions and decisions to withhold material to a requester, providing an estimated date of completion, and communicating with requesters can help avoid lawsuits. We at OGIS also can help resolve disputes by facilitating clear communications between agencies and requesters and paving a potential path forward.

The bottom line is that good customer service and the use of dispute resolution skills may not stop all FOIA lawsuits but  will help keep some FOIA disputes out of the courts. Additionally, good customer service and the use of dispute resolution skills make the FOIA process more understandable and less contentious for everyone.

How Can We Help?

To use our mediation services, please contact us at ogis@nara.gov. We also provide training for agency FOIA professionals in dispute resolution skills; learn more about our training here: https://ogis.archives.gov/news-and-events/training-opportunities/dispute-resolution-skills-training.htm.

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Meet Members of the FOIA Advisory Committee

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Federal FOIA Advisory Committee Welcomes Sunshine Week

Members of the FOIA Advisory Committee join in wishing Sunshine Week a happy birthday! (NARA Identifier 6728621)

Members of the FOIA Advisory Committee join in wishing Sunshine Week a happy birthday! (NARA Identifier 6728621)

The Federal FOIA Advisory Committee is pleased to issue a joint statement, below, honoring the 10th anniversary of Sunshine Week.

As regular readers of our blog know, the FOIA Advisory Committee is comprised of FOIA experts from inside and outside of government. Committee members are working collaboratively to address major issues in the FOIA process and develop consensus recommendations.

The Committee holds a public meeting once per quarter (mark your calendars for the next meeting on Tuesday, April 21). Check out the Committee’s website for the minutes and a link to videos of past meetings, and for information on how you can provide input and feedback.

Joint Statement of the Freedom of Information (FOIA) Advisory Committee

 

The Federal FOIA Advisory Committee joins FOIA professionals, open government advocates and journalists across the country in celebrating the 10th anniversary of Sunshine Week.

The members of the FOIA Advisory Committee represent diverse views from inside and outside government, and we share the goal of improving FOIA by fostering dialogue between and among the Federal government and the requester community; receiving public comments; and developing recommendations for refining and enhancing FOIA administration.

Sunshine Week, an initiative launched in 2005 by the American Society of News Editors, similarly brings together Federal, state and local agencies, and the public to focus on openness in government operations. Over the last decade, government agencies, media outlets, open government groups, libraries, and nonprofits around the country have embraced this celebration.

The FOIA Advisory Committee is pleased to join the effort to improve FOIA as it works on three key issues central to improving FOIA: oversight and accountability of agency FOIA programs, FOIA fees, and proactive disclosures. We look forward to continuing our work together to explore these issues over the next year and beyond, and welcome input from the public at any time. For more information, please visit https://ogis.archives.gov/foia-advisory-committee.htm.

Posted in Fees, FOIA Advisory Committee, Open Government, Sunshine Week 2015 | Leave a comment

Show Open Government Some Love this Sunshine Week

 

Join NARA in showing open government some love this Sunshine Week!

Join NARA in showing open government some love this Sunshine Week!

Previously we let you know about some of the ways OGIS and other federal agencies are celebrating the Freedom of Information Act (FOIA) during Sunshine Week. Today, we’d  like to tell you about how you can contribute to a special Sunshine Week project by our parent agency, the National Archives and Records Administration (NARA).

As you may know, NARA created a tool that allows the public to help make historical documents more accessible and improve search results. By using the Citizen Archivist Dashboard, you can tag and transcribe some of the millions of digitized pages of records in the National Archives Catalog.

Of the groups of records that NARA is targeting for transcription this week, people in the FOIA world might be particularly interested in helping transcribe love letters from Lyndon Baines Johnson to “Lady Bird” Johnson. As the 36th President of the United Station, LBJ signed the original FOIA bill in 1966. It is well-known, however, that he did not love the bill. The series of letters might help the FOIA community see a different side of LBJ.

If you decide to give the Citizen Dashboard a try, please use the hashtag #1000pages and tweet us @USNatArchives to let us know what you’re working on and what you find in the records!

Posted in Open Government, Sunshine Week 2015 | 1 Comment

Mark Your Calendars: DHS Requester Roundtable Scheduled for March 25

The Department of Homeland Security (DHS) recently announced that on Wednesday, March 25 from 2 to 3:00 pm (Eastern), DHS Freedom of Information Act (FOIA) staff will hold a Requester Roundtable teleconference. This is a fantastic opportunity for members of the requester community to learn more about the DHS process and share their ideas for improving communication.

DHS’ announcement is below. For more information, or to register for the event, email foia@hq.dhs.gov

DHS Stakeholder Engagement v.2

 

Posted in About FOIA, Customer service, Requester Roundtable | Leave a comment

Sunshine Week 2015

The signatory of the original Freedom of Information Act takes in the sunshine in the White House pool. (NARA Identifier 6802686)

The signatory of the original Freedom of Information Act takes in the sunshine in the White House pool. (NARA Identifier 6802686)

With wintry weather events closing federal offices closing practically across the country, it might be easy to miss that Sunshine Week 2015 is almost upon us. We hope you all will join our friends and colleagues inside and outside government in this weeklong celebration of openness March 15-21.

What’s Happening at OGIS?

We are only a couple of months into the new year, but 2015 has already been an exciting year at OGIS. As we shared in December, OGIS staff has changed (and grown) quite a bit in the last few months!

This Sunshine Week, OGIS will highlight the federal FOIA Advisory Committee. Be on the lookout for a joint statement from the Committee members celebrating the week. The National Archives and Records Administration Twitter handle also will be hosting brief interviews with some of the Committee members throughout the week. Check out this blog and follow @USNatArchives for updates.

Our mediation team continues to assist customers from both agencies and the requester community to resolve disputes. You can keep up with our casework by taking a look at our case log.  OGIS has also posted a significant number of our final response letters. These letters, which are redacted to maintain the confidentiality of our customers, help the public and agencies understand the types of cases OGIS assists with, and what kinds of steps we take to resolve disputes.

The review team, which launched its new agency assessment program at the end of FY 2014, is preparing to release its second assessment soon. (Check out our report on our first assessment here.) During an agency assessment, our review team uses a variety of methods—including interviews, surveys, and a review of a sample of the agency’s FOIA cases—to better understand the agency’s FOIA process. The final report is designed to be a usable and readable guide to the agency’s program that highlights best practices and makes recommendations to improve the FOIA process.

What are Other Federal Agencies Doing?

Federal agencies will mark Sunshine Week in a variety of ways, including employee training and other awareness activities. A few agencies will also host events that are open to the public.

The Department of Justice will kick off Sunshine Week on Monday March 16 by hosting an event recognizing great FOIA work by federal agencies. This year’s celebration will honor FOIA professionals. Read DOJ’s announcement for details, including how to register to attend.

The Census Bureau also will host an event on Wednesday, March 18 at its Suitland, Md., headquarters at 4600 Silver Hill Road, accessible from Metro’s Green Line. The event, titled Era of Transparency: FOIA, the Privacy Act, and Open Government, kicks off at 9 a.m. featuring a discussion with the Office of Information Policy’s Melanie Pustay, Commerce’s Catrina Purvis, CREW’s Anne Weismann, and Census Bureau’s Avi Bender and Jeannie Shiffer. At 1 p.m. Michael J. Toland, Chief of the Bureau’s FOIA and Open Government Branch will discuss how FOIA and Open Government are carried out at the Census Bureau. Register now or request more information by emailing census.efoia@census.gov.

There are many other Sunshine Week events taking place inside and outside the beltway. Take a look at sunshineweek.org to see what ‘s going on in your area. Or leave a comment below to tell us what you’ll be doing during Sunshine Week 2015.

Posted in About OGIS, FOIA Advisory Committee, Open Government, Sunshine Week 2015 | Leave a comment

Matters of Consent

signature

We must ask some, but not all, requesters for their signed consent. Chalk that up to agencies that don’t have OGIS language in their SORNs. (NARA Identifier 7666253)

The Consumer Financial Protection Bureau (CFPB) recently made our work a little bit easier in one small way. We no longer have to ask CFPB’s Freedom of Information Act (FOIA) requesters who come to OGIS for assistance to provide consent so the agency can discuss their requests with us.

That’s because CFBP alerted the world through a Federal Register notice that it will routinely share information in its FOIA records with OGIS without first getting the consent of the individual requester.

CFPB joins seven Cabinet-level departments and five agencies which have such an agreement—known as a Privacy Act Systems of Records Notice (SORN).

We’ve written before about the Privacy Act of 1974, which covers FOIA and Privacy Act request files at every agency. FOIA request files, which are retrieved by an individual’s name or personal identifier, cannot be disclosed to another person (outside of the agency) or to another agency, with certain exceptions.

One exception is when an individual consents to disclosure of his or her records request file. Another exception to the Privacy Act’s non-disclosure provision is when an agency “routinely” needs to disclose those records for certain purposes: think the Department of Justice (DOJ) and the Department of Homeland Security. Most agencies have a pretty long list of “routine uses,” many of which are common across agencies (for example, sharing records with the DOJ when there is litigation involving the individual’s FOIA request.)

Streamlining the way agencies share with us information about FOIA requests that is covered by the Privacy Act is about more than the mediation services we offer—it also strengthens our nascent agency assessment program. That’s because without a SORN that says the agency will, as a matter of routine, share information with OGIS, we will not be able to review agency FOIA files without the agency first obtaining the consent of each individual requester. Part of our assessment program includes reviewing FOIA request files.

We’ve asked all 15 Cabinet-level departments to include an OGIS routine use in their Privacy Act SORNs. The Departments of Defense; Health and Human Services; Homeland Security; Justice; State; Transportation; and Treasury have OGIS routine uses, as do six smaller agencies, including CFPB. Thank you!

So how difficult is it to amend a Privacy Act SORN?

Several years ago, OGIS worked with DOJ to develop a model routine use that agencies can use for this purpose:

 To the National Archives and Records Administration, Office of Government Information Services (OGIS), to the extent necessary to fulfill its responsibilities in 5 U.S.C. § 552(h), to review administrative agency policies, procedures and compliance with the Freedom of Information Act (FOIA), and to facilitate OGIS’ offering of mediation services to resolve disputes between persons making FOIA requests and administrative agencies.

We hope the agencies that don’t have such language in their Privacy Act SORNs will consider adding it.

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Throwback Thursday: The Difference between FOIA’s Fee Categories and Fee Waiver

Unlocking FOIA fees is one of the keys to a successful FOIA request. (NARA Identifier 7858132)

Unlocking FOIA fees is one of the keys to a successful FOIA request. (NARA Identifier 7858132)

In honor of throwback Thursday, we’re bringing up a topic that we’ve covered previously in this post: the difference between FOIA’s fee categories and fee waivers. This topic is an oldie but a goodie, and confusion about the topic abounds.

Let’s start with the basics

FOIA includes three basic requester categories for the purposes of fees:

  • commercial requesters;
  • educational institutions, noncommercial scientific institutions, representatives of the media; and
  • all others.

There are different fees associated with each of these categories. We have broken out the categories and associated fees in an easy-to-read chart. The category that a requester is placed in can make a  large difference in terms of the final bill a requester must pay to receive records.

FOIA also allows requesters to ask the agency to waive or reduce fees. Fee waivers demand a much higher threshold for consideration that a fee category.  In order to qualify for a fee waiver or reduced fees, a requester must show that “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” The Department of Justice’s guidance to agencies on how to carry out FOIA’s fee provisions includes six analytical factors that agencies should consider when deciding if fees should be waived or reduced. To qualify, requesters should address each of these factors in their requests.  A requester’s ability to pay is not considered in this process.

Now that we have the basics out of the way, let’s move on to what this means for FOIA requesters in practice.

During fiscal year (FY) 2013, federal agencies granted 5,140 requests to waive fees, according to foia.gov; for context, that means that of the 678,391 FOIA requests agencies processed in FY 2013, fee waivers were granted in fewer than 1 percent of the cases. You should also know that asking for a fee waiver could slow the agency’s processing of your request. As we explained in our last blog post on this topic, most FOIA processers do not decide whether to grant a fee waiver; that decision is often sent up the chain of command or even to the appeals office, creating another step in the administrative process.

Requesters often get the best bang for their buck by making a clear case for being placed in a favorable fee category. Agencies place requesters in fee categories based on what and how the documents will be used.  Requesters should start this process by reviewing the agency’s FOIA regulations to make sure they meet the agency’s standards for a certain category, and what information they must provide to be placed in a certain category. If you request to be categorized as a member of the news media, it helps an agency evaluate your request if you include material like links to your published stories or a copy of a contract to publish a book.

You can save yourself a great deal of hassle by making sure you address your fee category status in your initial request. If you feel that an agency has placed you in an incorrect category, though, contact the FOIA officer and provide him or her with additional information to justify placement in another category.

Do you have any great tips for how to deal with FOIA fee issues? Let us know in the comments.

Posted in About OGIS, Fees | 3 Comments

Make your voice heard: the FOIA Advisory Committee seeks public comments

Got a FOIA bee in your bonnet? The FOIA Advisory Committee wants to hear from you! (NARA Identifier 514417)

Got a FOIA bee in your bonnet? The FOIA Advisory Committee wants to hear from you! (NARA Identifier 514417)

On January 27, 2015 the FOIA Advisory Committee met to discuss its progress on examining three important FOIA issues: proactive disclosures, FOIA fees, and FOIA oversight and accountability.

The Committee opened the meeting by voting unanimously to approve the October 21, 2014 meeting minutes. The Committee also approved the bylaws drafted by the Committee’s Bylaws Working Group.

The Committee spent most of the meeting discussing status reports from the Proactive Disclosures, FOIA Fees, and Oversight and Accountability subcommittees. The meeting subcommittee reports are available on OGIS’s website, as are the transcript and video from the meeting.

As the FOIA Advisory Committee works hard to examine some challenging areas of FOIA law and policy, it needs your help. Input from the public will help the subcommittees better understand the issues that FOIA requesters and agencies face.

Proactive Disclosures Subcommittee co-chair David S. Reed noted the two specific issues the subcommittee is exploring: using data to held figure out what records the public would like the government to post proactively; and reconciling the FOIA’s proactive disclosure requirements with Section 508 of the Rehabilitation Act which requires agencies to make all posted records accessible to people with disabilities.

To help determine which records are of high value to the public, the subcommittee is using agency records of what the public is requesting under FOIA (commonly referred to as “FOIA logs”). Mr. Reed requested that Federal agencies provide the subcommittee with robust, detailed FOIA logs to analyze.

“Section 508” is the shorthand agencies and users use to refer to the requirements for Federal agencies to make their electronic and information technology accessible to people with disabilities. To improve the subcommittee’s understanding of the relationship between Section 508 compliance and proactive disclosures, Mr. Reed requested that Committee members, Federal agencies or the public share experiences where the requirements of Section 508 prevented an agency from making proactive disclosures. Mr. Reed also asked for examples of where an agency made a proactive disclosure before making the record Section 508 compliant (for example, posting the record online while it was undergoing remediation).

The FOIA Fees Subcommittee is developing a survey for FOIA professionals that will examine the current fee structure and how agencies handle requests they consider burdensome. The subcommittee asks the public to submit example survey questions that will help the subcommittee gather the information it needs to better understand this issue. It also welcomes recommendations on how to improve the administration of FOIA fees.

The Oversight and Accountability Subcommittee has compiled a list of FOIA reports, reviews, audits, and inspections and made them available on the subcommittee’s webpage. The subcommittee welcomes your suggestions on U.S. Government Accountability Office (GAO) Audits and Reports and Agency Audits, Reports and Reviews to include in its collection. The subcommittee will review the reports to identify successes and challenges as well as gaps and areas for additional oversight.

The Oversight and Accountability Subcommittee will also assess the role of FOIA Public Liaisons at agencies to help determine what is working at certain agencies and how the roles differ between agencies. To complete this work, the subcommittee will hold a roundtable with agency FOIA Public Liaisons and be sending a survey out to FOIA Public Liaisons. The subcommittee welcomes any suggestions and feedback you have with regard to FOIA Public Liaisons and FOIA oversight and accountability.

Please visit the FOIA Advisory Committee’s webpage, including the Public Comments page, for information about the Committee and how you can get involved. Do you have ideas or opinions you’d like to share? We’d love to hear from you!

Posted in Fees, FOIA Advisory Committee, FOIA Public Liaisons, Government information, Open Government, Regulations | Leave a comment