Grab Your Seat for Our November 16 Dispute Resolution Skills Training Session!

Be sure to RSVP ASAP to get a seat for our November 16 Dispute Resolution Skills for FOIA Professionals training session! (NARA ID 7431317)

Registration is now open for our November 16 Dispute Resolution Skills for FOIA Professionals training session. Space is limited and seats fill up fast, so make sure you act now to reserve your spot for this free training!

This training is intended to teach FOIA professionals practical communication skills to help them understand and resolve disputes – skills that can improve not only your communications with FOIA requesters, but also with your agency colleagues, and even your friends and family. We also give training participants a chance to test drive their skills and fine tune their approach through activities and a role playing exercise.

We can also offer agency-specific training. If you are a FOIA Officer and interested in having OGIS conduct a training session for your staff, please contact Carrie McGuire at carrie.mcguire@nara.gov or (202) 741-5774.

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FOIA and the Digital Future on Agenda for October 19 FOIA Advisory Committee Meeting

FOIA Act Advisory Committee Meeting

Members of the FOIA advisory committee brainstorm ideas during the Freedom of Information Act (FOIA) advisory committee meeting at the National Archives in Washington, DC, on July 21, 2016. NARA photo by Brogan Jackson.

The FOIA Advisory Committee has studied and considered the profound effects that technology is having on the way that government operates, and the public’s expectations for transparent government for a little more than a year. During its October 19 meeting, we expect for the discussion to focus on the draft recommendations developed by each of the subcommittees to address these challenges.

As we announced previously, the National Archives’ former Director of Litigation, Jason R. Baron, will address the Committee and discuss the challenge of implementing FOIA in a digital world during the October 19 meeting. We anticipate that Mr. Baron will highlight the deep connection between improving electronic record keeping practices and improving access to agency records through use of FOIA.  Mr. Baron will likely also discuss the implications of the increased volume of email agencies are archiving as a result of the continued adoption of the Capstone approach to managing email records. (For those of you who are not familiar with Capstone, it is an approach to email management suggested by the National Archives that requires agencies to save most employees’ emails for at least seven years while permanently retaining email from a certain number of designated Capstone officials; you can learn about the Capstone approach in far greater detail here). We also anticipate that Mr. Baron will point to the significant increase in the volume of email that FOIA offices will need to search as Capstone continues to be implemented, and existing technology and best practices that FOIA offices can use to ensure that they meet this challenge.

We are also excited to announce that the Proactive Disclosure Subcommittee has invited Max Galka to speak about his research involving agency FOIA logs. Mr. Galka is a data scientist and entrepreneur based in New York City, and is the creator of FOIA Mapper, a search engine for offline public records, funded by the Knight Foundation.

We hope you can join us for this very exciting session. Please register via EventBrite if you plan to join us in person. If you are not in the DC area, you can watch the session via livestream on the National Archives YouTube Channel.

 

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Understanding FOIA Delay

train-199961

President Truman’s train might have run on a tight schedule, but unfortunately delay is a frequent part of the FOIA process. (NARA Identifier 199961)

One of the frustrations with the FOIA process that we hear about most frequently is the delay in an agency’s response to a request. Frequently, requesters contact us to ask why an agency has not responded within the 20 working days response time that is prescribed in the law. We understand that delays are extremely frustrating; unfortunately they are all too common at agencies that receive a large volume of requests and at agencies that are struggling to respond to a backlog of old requests.

To help requesters understand why an agency’s response may be delayed, we thought it might be useful to give you all a quick guide to where you can find statistics about an agency’s FOIA performance, and give you a few helpful hints on how to use these resources.

First: Where can you find agency FOIA performance data? Agencies report a broad range of statistics at the end of each Fiscal Year (FY) about their FOIA processing operations in annual reports that the agency submits to the Attorney General of the United States. You can generally access these reports on at least one of two websites: the agency’s FOIA reading room or the Department of Justice (DOJ) Office of Information Policy (OIP) FOIA Reports Web Page. OIP’s webpage provides a centralized repository of agency Annual FOIA Reports going back to FY 1998. OIP also manages a website, FOIA.gov, that allows users to pull up, compare, and download data from these reports from FY 2008 forward.

Second: What data points might help you understand an agency’s delay? [See How to find “backlog” data on FOIA.gov for a visual guide to creating reports on FOIA.gov]

  • Requests Received and Processed

The first data point we generally look at to understand an agency’s FOIA program is the number of requests that it received and processed during the Fiscal Year. These numbers will help you understand the demand for information from that agency, and the amount of work the agency was able to complete during the Fiscal Year.

If you are looking at a PDF of the agency’s report, you can find this information at the beginning of Section V, “FOIA Requests – Received, Processed and Pending FOIA Requests.” If you are using FOIA.gov to look up this information, you will want to click on the “Data” tab. Under “Select Report” choose “Requests” (this should be the default choice) and then select the agency. Click each Fiscal Year you would like to see data for and then push the “Create Report” button. A graph and the hard data will appear on the screen below.

  • Backlog

If you have already looked at information about the number of requests received and requests processed, then you also saw data about the number of FOIA requests pending at the end of the Fiscal Year. The difference between “Requests Pending” and “Backlog” is that “Backlog” includes only those requests that the agency was not able to respond to within the law’s 20 working days response time. Since agencies generally process FOIA requests on a first-in, first-out basis, understanding an agency’s backlog can help you get a sense of why it might take some time before the agency is able to respond to your request.

In the PDFs of the agency Annual FOIA Reports, Backlog is towards the end of the report, in Section XII, “Backlogs, Consultations, and Comparisons.” On FOIA.gov, on the “Data” tab, simply select the report for “Backlog,” choose the agency, click each Fiscal Year of interest, and then click on “Create Report.” A graph and the hard data will appear on the screen below.

  • Average Processing Time

Agencies report the average processing time for simple and complex cases. This data will help you understand about how long other requesters had to wait until they received a response from that agency.

In a PDF of an Annual FOIA Report, you can find this information under Section VII, “FOIA Requests: Response Time for Processed and Pending Requests.”  You can use the charts in that Section to look up the average processing time for all requests processed and for all requests where information was released during the Fiscal Year. In addition to the average, the Section also includes information on the median processing time and the lowest and highest number of days an agency took to respond to a request.

On FOIA.gov, you will find this information by selecting the “Processing Times” report and then choosing either “Pending Requests” or “Requests Granted.” Once you have chosen the report, generate a graph and the hard data by, choosing the agency, putting a checkmark next to the Fiscal Year(s) of interest, and then clicking on “Create Report.”

Do you have any other data from agency annual reports that you find helpful? Let us know via tweet to @FOIA_Ombuds or emailing us at ogis@nara.gov.

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FOIA Advisory Committee to Meet on October 19th

FOIA Advisory

Jill Eggleston, Freedom of Information Act (FOIA) Officer for USCIS, helps to brainstorm ideas during the Freedom of Information Act (FOIA) Advisory Committee meeting at the National Archives in Washington, DC, on July 21, 2016. NARA photo by Brogan Jackson.

This Friday, September 29th, registration will open for the next meeting of the FOIA Advisory Committee in the McGowan Theater at the National Archives. The event is open to the public and can also be watched via livestream on the National Archives YouTube Channel.

As our regular blog readers know, the 2016-2018  FOIA Advisory Committee has been hard at work for a little over a year. Early in its term, the Committee’s members determined that they wanted to develop recommendations aimed at three important issue areas — proactive disclosures, searches, and efficiencies and resources. All of these topics reflect the profound effects that technology is having on the way that government operates, and the public’s expectations for openness with regard to federal records.

During the October 19th meeting, co-chairs of each of the subcommittees will brief the Committee on its work since the July 20th meeting. During this meeting, we also expect that the subcommittees will discuss their draft recommendations. The October 19th meeting will also feature a special presentation by NARA’s former Director of Litigation, Jason R. Baron. Mr. Baron currently is Of Counsel at Drinker Biddle LLP, and is an internationally recognized speaker and author on the preservation of electronic documents.

You can follow the FOIA Advisory Committee’s work by visiting this section of our website. If you have any comments for the Committee, please email them to foia-advisory-committee@nara.gov.

Posted in FOIA Advisory Committee | 2 Comments

OGIS Visits U.S. Citizenship and Immigration Services (USCIS)

USCIS hosts a naturalization ceremony on Ellis Island in in 2000. (NARA Identifier 7934956)

The United States Citizenship and Immigration Services (USCIS) FOIA program in Lee’s Summit, Missouri invited several members of the OGIS staff to visit their facility this week to provide their FOIA staff with training and to facilitate an agency FOIA compliance assessment.

OGIS’s training sessions are intended to teach FOIA professionals practical communication skills to help them understand and resolve disputes. During the sessions, we also give training participants a chance to test drive their skills and fine-tune their approach through activities and a role-playing exercise. We provide this training twice each year at the National Archives, and also provide agency-centric training upon request. To learn more about our training program, or to find out more about setting up a session for your agency, please email us at ogis@nara.gov.

Like the other agencies that have participated in our agency compliance assessment program, USCIS volunteered to go through the process as part of their ongoing efforts to strengthen their FOIA program. During the visit we will interview USCIS’s FOIA leadership and review a sample of FOIA case files. Our assessments also rely on our analysis of agency FOIA policies or Standard Operating Procedures, several years’ worth of annual FOIA reports to the Attorney General, FOIA litigation filed against the agency, and any dispute resolution cases involving the agency to get a thorough understanding of the FOIA programs’ operations. As a neutral third party, we are able to critically assess this information, identify any challenges or opportunities to improve the FOIA program’s processes, and use our knowledge of a broad range of agency best practices to develop tailored and targeted recommendations.

In addition to hearing about the FOIA program from the agency employees’ perspective, we think it is important to hear from the agency’s FOIA requesters. If you would like to share your experience as a FOIA requester at USCIS, please send us your comments to ogis@nara.gov.

Posted in Review, Training | 1 Comment

Cheers for a National FOIA Portal

Join us in celebrating the latest news about the development of the National FOIA Portal. (NARA Identifier 199325)

Almost five and a half years ago we at OGIS recommended to Congress that the development of a governmentwide FOIA web portal could improve public access to government information. Now, thanks to ongoing collaboration between the Office of Management and Budget (OMB and the Office of Information Policy at the Department of Justice (DOJ) and 18F, the digital services agency within the General Services Administration, we are closer than ever to having a National FOIA Portal.

Along with recommending the creation of the unified portal, OGIS was an early promoter of the effort to develop and expand FOIAonline, a multi-agency web platform that accepts FOIA requests, stores them in a repository for processing by agency staff, and allows an agency to post the released records in a centralized FOIA e-reading room. As we emphasized at the time, FOIAonline improved the experience for requesters, and saved taxpayers’ money by sharing agency resources and repurposing existing technology. FOIAonline also reduces the administrative burden on agencies since requester contact information is automatically stored in the system, and agencies can use the portal to communicate with the requester. Six of the 100-odd federal agencies that accept FOIA requests were a part of the FOIAonline launch, including part of the National Archives. As shown in 18F’s research while developing the National FOIA Portal, 10 percent of agencies now participate in FOIAonline, representing 17 percent of the total volume of requests processed by the federal government.

While FOIAonline has been a useful solution for its partners, we recognize that other agencies have found tools that they see as a better fit for their agencies’ needs and priorities. As 18F’s research also shows, in addition to FOIAonline, federal agencies have developed and maintain a variety of other online solutions to accept and manage FOIA requests. Their research also shows that a substantial number of agencies, especially those that process relatively few requests each year, rely on manual processes to take in and manage their FOIA caseload.

In the FOIA Improvement Act of 2016, Congress tasked OMB, in consultation with the Attorney General, to ensure the development and operation of a consolidated online request portal, and we were happy to participate in the Cross Agency Priority (CAP) Goal process that moved the National FOIA Portal and a number of other FOIA reforms forward. We are looking forward to seeing and testing the first iteration of 18F’s National FOIA Portal as soon as it is available, and sharing our feedback.

Posted in FOIA in the news, FOIAOnline, innovation, Open Government | 3 Comments

Return to Sender

Our new practice is to return misdirected information to a FOIA requester. (NARA Identifier 26413096)

As you might be aware if you regularly read our blog (or if you check our mediation program quarterly performance statistics), the FOIA Improvement Act of 2016 created a surge in requests for our assistance. We have also received many submissions intended for other federal agencies – including misdirected appeals, certifications of identity, and other sensitive personal information.  Initially, we attempted to pass along all of these misdirected documents to the intended agency. We became concerned, however, that our practice might delay the transmission of the information to the correct agency and potentially place sensitive personal information at risk. To address these concerns, we will now to alert the requester of the error immediately and advise them to contact the agency directly.

Recently, as part of a larger initiative focused on improving customer service, we solicited feedback through the Chief FOIA Officers Council on ways to increase requester understanding of how to contact the agency versus how to request our assistance. As a result of these discussions, OIP issued updated template language for agencies to use in their response letters. If you see any agency FOIA response letters that do a really good job of explaining who customers should contact for assistance, or if an agency’s response is particularly confusing, please let us know!

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A Reminder on the Use of Still Interested Letters

It’s a good idea to keep in contact with FOIA requesters, but agencies should be judicious about the use of “still interested” letters. (National Archives ID 6011090)

As the end of Fiscal Year (FY) 2017 approaches, we understand that agencies face increased pressure to close old requests and reduce their backlogs. This is also a good time to remind agencies about how to ensure their efforts comply with U.S. Department of Justice (DOJ) guidance and best practices.

As we have talked about several times on this blog, the use of “still interested” letters to administratively close FOIA requests is often a sore point for requesters – particularly when the agency’s response to the request has been significantly delayed and the agency provides the requester with very little time to respond. On July 2, 2015, the Office of Information Policy (OIP) at DOJ issued guidance aimed at limiting the use of “still interested” letters, and addressing some of requesters’ frustrations with the practices.

Significantly, in its guidance OIP encouraged agencies to:

  • provide requesters with no fewer than 30 working days to respond (emphasis in original);
  • limit the use of “still-interested” inquiries to situations where the agency has a reasonable basis to conclude that the requester’s interest in the records may have changed; and
  • absent good cause, do not send a requester more than one “still interested” letter regarding a request.

After OIP issued the guidance, we undertook a fairly comprehensive review of the historical use of these letters and current agency practices. Based on our findings and observations, we made several recommendations, some of which are intended to help ensure that these letters are not abused. In particular, we have recommended that any FOIA program that uses “still interested” letters incorporate OIP’s guidance on the proper use of any “still interested” correspondence in any existing or future Standard Operating Procedures. We also recommend that the agency ensures that the FOIA program managers are aware of how FOIA processors are using “still interested” letters; one way to accomplish this is to require that any “still interested” correspondence is signed by the FOIA Officer.

OGIS continues to monitor the use of “still interested” letters, and reaches out to agency officials to bring potential problems to their attention. You can find some of our most recent letters to agencies about the use of these letters on our website. If you have received a “still interested” letter from an agency that does not seem to be compliance with OIP’s guidance, please email us a copy of that letter to ogis@nara.gov, along with a brief explanation of the circumstances surrounding the letter (i.e., the nature of your original request, how much time has passed from the filing of your original request to the time  you received a “still interested letter,” and whether you were ever contacted by telephone or email directly by the agency); or tweet to us about it at @FOIA_Ombuds.

Posted in Review | 1 Comment

Teach the Children Well

DocsTeach screen shot

Our goal is to help students understand history, and the importance of open government in our democracy.

As pictures of adorable kids returning from summer vacation and starting their first day of school begin to flood our social media feeds, we thought this might be a good moment to remind you all about the National Archives’ fantastic educational resource, DocsTeach, and to note that teachers can use this tool to help students of all ages understand the importance of access to agency records under the Freedom of Information Act (FOIA)!

DocsTeach is an online tool created by the National Archives’ Education and Public Programs division that offers teachers student activities using materials from the National Archives Catalog. Teachers can also use the tool to create their own activities to expand student understanding of a topic while also sharpening their document analysis techniques, improving their understanding of primary source documents in historical context, and more.

Last year we worked with our colleagues in the National Archives education department to leverage this tool to help teach the next generation about the FOIA. We developed an infographic explaining basic facts about the public’s rights under FOIA and what to expect during the process. The infographic uses plain language and graphics intended to help students easily understand the basic concepts of FOIA and where they can find more information about how to ask for copies of agency records. We then asked people with expertise about history and the contents of the National Archives Catalog from inside and outside of the government to let us know of any historical moments when the availability of an agency’s records helped the public to better understand the government’s actions.

Based on the feedback we received, the first activity using the infographic in DocsTeach explores the public’s response to the civil rights marches beginning in Selma, Alabama in 1965. The activity enriches student understanding of the civil rights marches in Selma, Alabama, using Federal Bureau of Investigation records released under FOIA.

If you have any other suggestions of records in the Catalog that will help students understand the role of records in improving understanding of the government’s actions, we encourage you to join the conversation on History Hub, the National Archives’ online community for researchers, citizen historians, archival professionals, and open government advocates.

Posted in About FOIA, Open Government | 2 Comments

OGIS Announces Release of Consumer Financial Protection Bureau FOIA Compliance Report

Visit our website (www.archives.gov/ogis) to see all of our agency FOIA compliance assessment reports!

We are very pleased to announce the release of our latest FOIA compliance agency assessment – this report takes an in-depth look at the operations of the Consumer Financial Protection Bureau’s (CFPB) FOIA program.

OGIS’s agency assessments are based on direct observation and review of CFPB’s FOIA case files, analysis of applicable data and documents, and interviews with agency employees and officials. Our agency assessment reports are intended to provide sufficient detail about the FOIA program’s processes to understand its operations, and provide actionable recommendations to strengthen the FOIA program. These recommendations are based on our knowledge of FOIA practices across the government.

As we noted in our report, the FOIA CFPB program maintains a relatively small backlog and is able to respond to most requests well within the law’s 20 working day response time. We also noted that despite an increase in the number of requests received each fiscal year (FY), the size of CFPB’s FOIA staff has been constant since FY 2016, and is not expected to grow within the next five years. Our report also notes that the CFPB has invested in technology that greatly enhances the efficiency of its FOIA program, and that CFPB’s FOIA Program encourages good communication practices with requesters.

To learn more about the CFPB program and our recommendations, please download the report. We will be following up with the CFPB in 120 days to learn what steps they have taken in response to our recommendations.

Posted in Review | 2 Comments