OGIS Shares FOIA Tips at IRE Conference

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Tips for reporters – and others – to avoid common FOIA issues. NARA Identifier 39014462

Last week our Attorney Advisor, Sheela Portonovo, attended the 2018 Investigative Reporters and Editors (IRE) Conference to share best practices for successfully navigating the FOIA process. Below is a brief summary of the major issues with the FOIA process we regularly hear about from reporters (and others), and some of the tips she shared.

Issue 1: Delay.

We regularly hear from customers, including reporters who might be working on a deadline, who are frustrated by delays in the FOIA process. Unfortunately, long response times 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.

Tips to avoid delays:

  • Do as much research as you can before filing your request. Agency websites and FOIA reading rooms/libraries contain numerous proactive and required disclosures. Referencing disclosures that are similar to what you are seeking may make processing your FOIA request faster. Research can also ensure that you are submitting your request to the correct agency.
  • Contact the agency FOIA Public Liaison (FPL) or OGIS to help formulate your request. Agency FPLs can answer questions about the type of records the agency keeps, how they are kept, and possibly suggest ways of wording your request to speed up response times and help address fee issues. If you are not able to contact the FPL, OGIS can assist you with contacting the FPL and act as a liaison.
  • Be specific in your request. Use the research you’ve conducted and conversations with the agency FPL and/or OGIS to be as specific as possible in your request. The more you information you can provide about what you are looking for, and/or where you believe the records may be located, the faster the agency may process your request.

Issue Two: Fees

Sometimes even highly-experienced FOIA requesters approach us with questions about FOIA’s admittedly complicated fee structure. FOIA allows agencies to recover some fees associated with searching for records and processing a request. However, agencies generally collect a very tiny fraction of their costs each year. Recent amendments to the FOIA further restrict agencies’ ability to collect fees if they miss processing deadlines (you can learn more about when an agency can and can’t charge fees here).

Tips for avoiding fee issues:

  • Understand the difference between “Fee Category” and “Fee Waiver.” Fee categories are based on the nature of the requester. Fee waivers are based on the use of the information.
  • Indicate the appropriate FOIA fee category when you file your request. The type and amount of fees differ depending on the requester’s fee category (see our easy-to-read chart for a complete breakdown). Most of the IRE attendees would qualify as a “representative of the news media” because they are gathering information of potential interest to a segment of the public, using editorial skills to turn raw material into distinct work, and disseminating that work to an audience. Representatives of the media are only charged duplication fees, and are entitled to the first 100 pages free.
  • Discuss the scope of your request with the agency. In addition to helping you avoid delays, talking about the scope of your request and appropriately narrowing it to exclude records that are not of interest to you can help avoid fee issues. Also, the agency is barred from collecting fees if your request involves less than 5,000 pages and the agency does not meet processing deadlines.
  • Apply for a FOIA fee waiver only if the records meet certain standards. Requesters must meet a high threshold for approval of a fee waiver or reduction in fees. Agencies should waive or reduce fees “if 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.” 5 U.S.C. § 552(a)(4)(A)(iii).

We hope you find these tips helpful, and we look forward to continuing to work with requesters and agencies to make the FOIA process work.

Posted in About FOIA, Best practices, Fees | Leave a comment

FOIA and NARA’s Federal Records Centers

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Learn more about NARA’s Federal Records Center by visiting  https://www.archives.gov/frc

We sometimes hear from FOIA requesters and agency personnel who are confused about why a FOIA request for records at the National Archives and Records Administration (NARA) is not processed by NARA. The answer has to do with whether the federal agency or NARA has legal custody of the records, and requires a brief explanation.

NARA only takes legal custody of records that have been determined to be of permanent historical value. The term of art used by records management staff for the transfer of permanent records to NARA is “accessioning.” “Accession” is the process of transferring legal – and in most cases physical – custody of permanent records from federal agencies to NARA. See 36 C.F.R. § 1235.  While the terms “transfer” and “accession” are often used interchangeably, there is an important distinction. “Transfer” refers to moving records into the physical custody of a NARA Federal Records Center (FRC). The transferring agency, however, retains legal custody of the transferred records until final disposition.

The vast majority of records created by the federal government are not kept permanently; they are managed and destroyed according to the agency’s records schedule. To assist agencies in maintaining their records, NARA maintains 16 FRCs throughout the country, as well as National Personnel Records Centers for military and civilian records in Spanish Lake, MO and Valmeyer, IL, respectively. These facilities are fully compliant with regulations that protect records from fire, theft, pests, water damage and natural disasters, and provide high-quality, cost-effective storage for federal agencies. Agencies can pay NARA to store records in the FRCs until final disposition (either destruction in accordance with the agency’s records schedule or accessioning). Records in NARA’s FRCs remain fully in the legal custody of the agency.

What if an agency receives a FOIA request for an agency record that is being stored in an FRC? It is incumbent on that agency to contact NARA and request access to those records. That agency is required to review and process the records, and respond directly to the requester. NARA’s role is limited to assisting the agency with retrieval of the responsive records.

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

Highlighting Great Customer Service at USCIS

Each year we include a few case studies in our Annual Report to highlight the way that we can help assist FOIA requesters and agencies in resolving FOIA disputes. Today, we want to share one of the case studies from our Fiscal Year 2017 Report that shows how U.S. Citizenship and Immigration Services (USCIS) provided great customer service to assist a requester’s representative in obtaining critical documents. We are proud to work with agency FOIA professionals to help better serve the FOIA community!

CASE STUDY

In FY 2017, OGIS was contacted by an immigration attorney representing an individual receiving full-time medical care. The individual no longer had access to his immigration documents or identification, all of which were needed to apply for a change in immigration status. The attorney filed a FOIA request with the USCIS for his client’s Alien File, or A-File, the official Government record that contains information regarding non-citizens as they pass through the U.S. immigration and inspection process. USCIS responded by releasing only a few documents; the attorney contacted OGIS for assistance.

OGIS contacted USCIS to learn more about the A-File request. USCIS FOIA staff explained that the agency was unable to locate an A-File for the individual because the agency did not have an “A” number, a unique personal identifier; the individual had entered the U.S. on a non-immigrant visa and therefore had not been issued an “A” number. USCIS confirmed that it had located and released all responsive records and that it had conducted an adequate search for responsive records.

USCIS was able to provide some additional information to OGIS that would assist the attorney. Specifically, the agency provided the name of the law firm that had assisted the same individual in a previous immigration matter. OGIS passed this information on to the individual’s attorney so he could contact the previous immigration attorney to obtain copies of additional documents in their files.

***

If you are interested in learning more about USCIS’ FOIA process, we hope you will join us for our Immigration Records Forum scheduled for August 30.

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Mark Your Calendars

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Alina Semo, Director of the Office of Government Information Services (OGIS), closes the OGIS Annual Open Meeting with remarks at the National Archives in Washington, DC, on May 18, 2018. NARA photo by Jeff Reed.

During our Second Annual Open Meeting on May 18, 2018 our Director, Alina Semo, shared a preview of what you can expect from OGIS during the remainder of Fiscal Year (FY) 2018, including event dates, upcoming reports and other exciting news.

We hope you will mark your calendars for several upcoming events we will be hosting in the William G. McGowan Theater:

Before the end of FY 2018 we also expect to release our assessment report of the United States Postal Service (USPS) FOIA Program and at least one issue assessment. OGIS’s issue assessments evaluate specific FOIA practices at several agencies. Our first issue assessment, which we rolled out in three parts, looked at the use of “still interested letters” to administratively close FOIA requests. We are currently conducting an assessment of agency compliance with requirements that requesters be alerted of the availability of  dispute resolution services, and are planning to tackle several of the issues addressed by the FOIA Advisory Committee in their Final Report and Recommendations.

We are also very happy to announce that we plan to roll out our first advisory opinions during FY 2018. Prior to the FOIA Improvement Act of 2016, OGIS’ authority to issue advisory opinions was tied to the resolution of a particular request for mediation services.  For several years, OGIS struggled with how to reconcile its authority to issue advisory opinions with the need to act as an impartial party that can facilitate the resolution of disputes between requesters and agencies while complying with the confidentiality provisions of the Administrative Dispute Resolution Act of 1996. OGIS intends to utilize this now-modified advisory opinion power to issue opinions that address the most common disputes, complaints, and trends that we identify through our dispute resolution practice. Our plan is to build a body of advisory opinions, available online for both requesters and agencies to consult, that will help head off disputes before they fester or lead to litigation. We also plan to pair our advisory opinions with a new educational vehicle we are calling the FOIA Ombuds Observer. Education about the FOIA is a critical component of our work as the FOIA Ombudsman, and is a key strategy for avoiding unnecessary litigation. The FOIA Ombuds Observer will address a variety of FOIA-focused topics based on questions we receive frequently and repeatedly from our customers.

To keep up with our events and work, be sure to regularly check this blog, follow us on Twitter – @FOIA_Ombuds, and visit our website, www.archives.gov/ogis!

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Final Report and Recommendations of the 2016-2018 FOIA Advisory Committee Released

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Freedom of Information Act Advisory Committee member Sean Moulton, Project On Government Oversight, discusses the committee’s final report during the final meeting of the 2016-2018 term held at the National Archives in Washington, DC, on April 17, 2018. NARA photo by Jeff Reed.

On April 17, 2018 the 2016-2018 Term of the FOIA Advisory Committee wrapped up its work by approving its Final Report and Recommendations.  The report is the culmination of two years of work by individuals with particular FOIA expertise inside and outside of government who were able to develop consensus solutions to some of the greatest challenges in the administration of FOIA.

As our regular blog readers know, the Committee focused on three areas during its 2016-2018 term: proactive disclosures and accessibility, FOIA searches, and the efficient use of agency FOIA resources. The Committee’s Final Report and Recommendations includes seven unanimously supported recommendations to the Archivist for actions to improve the implementation of FOIA, addressing search technology, FOIA and accessibility, and FOIA performance standards.

The report also includes a number of best practices that the Committee recommends the Archivist direct OGIS to publish and promote as part of our statutory responsibility to identify procedures and methods to improve compliance.

Briefly, the Committee’s recommendations and best practices that are discussed in this report include:

  • Improving proactive disclosures. The Committee recommended that the Archivist direct OGIS to publish as a best practice that agencies proactively post specific categories of records, including calendars of top agency officials, unclassified reports provided to Congress, FOIA logs, and other categories identified in the Final Report. The best practice also offers methods to ensure FOIA logs are most useful, and provides considerations for agencies when identifying additional areas for proactive disclosure.
  • Balancing proactive disclosure and accessibility obligations. The Committee recommended that the Archivist direct OGIS to publish a best practice encouraging agencies to avoid the removal of documents already posted on agency websites that are not currently compliant with Section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794d. Instead, the best practice recommended by the Committee is to remediate such documents. When agencies are concerned about the practicality of remediation, the best practice is for an agency to conduct an “undue burden” analysis by balancing Section 508 with their FOIA statutory obligations — the Rehabilitation Act allows agencies to release electronic documents that are not Section 508-compliant if rendering them compliant would “impose an undue burden” on the agency.
  • Improving FOIA Searches. The Committee recommended that the Archivist address the lack of public information about current methods and technologies agencies use to search for responsive records by: (1) requesting that the U.S. Department of Justice’s Office of Information Policy affirmatively collect this type of information in next year’s Chief FOIA Officer (CFO) Reports, and (2) recommending that the CFO Council work with the Chief Information Officers Council to explore the technological issues related to searches and to promote best practices. The Committee further recommended that the Archivist suggest a modification to the Federal Acquisition Regulation to ensure that all agencies consider FOIA obligations when acquiring electronic records management software and that the Archivist also direct OGIS to examine and report on the use of appropriate FOIA performance standards for federal employees.
  • Making efficient use of agency resources. The Committee recommended that the Archivist direct OGIS to publish as best practices a number of identified strategies to ensure agencies maximize the use of available resources. These best practices address several issues, including staffing, career incentives, workflow, accountability, and technology.

We were pleased to be joined by four Committee members during last week’s Second Annual Open Meeting to discuss the Final Report and Recommendations. During the panel discussion (the panel discussion begins around the 35:50 mark of this video on NARA’s YouTube Channel), Committee members talked about how the Committee developed its recommendations, and their views on what recommendations and best practices might be the easiest and the hardest to adopt.

Are you interested in being a part of the FOIA Advisory Committee? We are currently soliciting nominations for the 2018-2020 Term. To make a nomination – or a self-nomination – please submit the following materials to foia-advisory-committee@nara.gov by June 1, 2018:

  • Your name, title, and relevant contact information (including phone, fax, and email address);
  • If nominating someone else, the nominee’s name, title, and relevant contact information, and the Committee position for which you are submitting the nominee;
  • A short biographical paragraph about the nominee (fewer than 250 words), summarizing their/your resume´ or otherwise highlighting the contributions they/you would bring to the Committee; and
  • Your/the nominee’s resume´ or curriculum vitae.
Posted in FOIA Advisory Committee | 2 Comments

Time is Running Out: Register Today for the Second Annual OGIS Open Meeting!

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DHS wants your ideas! (NARA Identifier 534244)

Don’t forget to register to join us for the Second Annual OGIS Open Meeting on Friday, May 18th from 10 a.m. to noon. This is your opportunity to learn more about our activities, hear from members of the FOIA Advisory Committee, and share your views!

After welcoming remarks from Deputy Archivist of the United States Debra Wall, OGIS Director Semo will cover some of the highlights from our FY 2017 Annual Report, including the trends we have observed through our compliance program. After Director Semo’s presentation, she will be joined on the stage by members of the 2016-2018 Term of the FOIA Advisory Committee to discuss the Committee’s work and the broad range of recommendations and best practices included in the Committee’s Final Report (please note that you have until June 1, 2018 to submit a nomination to be part of the Committee’s 2018-2020 Term). After the panel discussion, there will also be an opportunity for the public to submit statements.

Can’t join us on Friday? You can submit your written statements to ogis@nara.gov. You can also watch the livestream of the event on the National Archives’ YouTube Channel, and use the chat function on the livestream to share your thoughts; we will have a member of the OGIS staff monitor the chat and share any substantive comments during the public comment period.

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

Five Ways Agencies are Improving FOIA Compliance

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Agencies are improving FOIA compliance by investing in new technologies. (NARA Identifier 1633507)

As we wrote about in our Fiscal Year (FY) 2017 Annual Report, our agency compliance assessment process recognizes that there is no one-size-fits-all approach to administering FOIA—each agency’s records are unique and as such, management of the FOIA process differs. We have observed that successful FOIA programs share three general characteristics: they manage their resources appropriately; they use technology effectively; and they communicate well with requesters.

Based on our agency FOIA compliance assessment reports and or analysis of the results of the FOIA Questions included in the 2016 Records Management Self-Assessment Survey (RMSA), today we want to highlight a few things agencies are doing to improve the administration of their FOIA programs:

  1. Use Good Management Techniques. Good management practices ensure staff have a clear understanding of their roles and responsibilities. Based on responses to the 2016 RMSA, we noted that most agencies report that they use basic management tools in their FOIA operations, including having Standard Operating Procedures, and using performance-based measures. In response to our FY 2016 assessment report of the Transportation Security Administration (TSA), the agency let us know that establishing performance metrics for FOIA analysts and case closure goals for the office resulted in reducing its backlog in the four months since the metrics were put into place. In FY 2017, we also noted that the Immigration and Customs Enforcement (ICE) used performance measures to monitor and increase staff productivity, which contributed to ICE’s successful effort to virtually eliminate its backlog.
  2. Win Leadership Support. In our FY 2017 assessment reports of ICE and the Consumer Financial Protection Bureau (CFPB), we noted that leadership support is critical to the agencies’ successful FOIA operations. At ICE, leadership’s support for increased funding substantially contributed to the agency’s backlog reduction efforts. Leadership support at CFPB also contributed to the agency’s ability to respond to most FOIA requests within the law’s 20-day response deadline.
  3. Make Good Investments in Technology. In our FY 2017 assessments, we saw that investments in technology to improve the FOIA process were successful at both ICE and CFPB. We noted that ICE invested in technologies and leveraged the expertise of contractors hired to reduce the agency’s backlog to improve and streamline the FOIA process. Similarly, we observed that CFPB provided the FOIA program with access to technologies that improved reporting, and e-discovery tools that made it easier for the FOIA staff to locate responsive records and discuss the scope of the request. Additionally, in our FY 2016 assessment report CBP attributed part of its successful backlog reduction to a move to a FOIA tracking system that agency FOIA managers thought was better suited to handle the large volume of requests that CBP receives each year.
  4. Have Sufficient Information Technology (IT) Support. In out FY 2017 assessment of CFPB, we documented the importance of sufficient IT support to CFPB’s ability to respond to FOIA requests in a timely fashion. On the other hand, in FY 2016 we documented issues that the United States Secret Service experienced with its FOIA tracking and processing system, which were significant enough to require some FOIA processors to use tape to hand-redact documents.
  5. Communicate well with requesters. Since the launch of our compliance program, we have observed that good communication helps ensure a smooth FOIA process—and helps to prevent disputes that may otherwise lead to litigation. Some of the notable practices we have observed are:
    1. Following Department of Justice Office of Information Policy (OIP) guidance regarding limiting the use of “still interested” letters;
    2. Providing requesters with plain language explanations of any exemptions used;
    3. Clearly describing any additional materials requesters need to provide before a request can be processed; and
    4. Providing estimated dates of completion when requested.

We look forward to learning more about how agencies are improving their administration of FOIA as we continue to grow our compliance program and conduct assessments of new agencies.

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Volunteer to Improve the Administration of FOIA

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Volunteer to be a part of improving the FOIA process! (NARA Identifier 513691)

Did you hear that we are currently accepting nominations for the 2018-2020 Term of the Federal FOIA Advisory Committee?

Who should be nominated? We are looking for agency FOIA professionals and nongovernment members who are interested in working to improve the administration of FOIA. From the government, we are looking for representatives  from both Cabinet-level Departments and non-Cabinet agencies. From outside of the government, we are seeking representatives of: organizations that advocate on FOIA matters; FOIA requesters who qualify for some of FOIA’s various fee categories (all other, news media and commercial), historians and history-related organizations; and academia. Self-nominations are welcome.

What should you include in your nomination? To apply, please submit the following materials:

  • Your name, title, and relevant contact information (including phone, fax, and email address);
  • If nominating someone else, the nominee’s name, title, and relevant contact information, and the Committee position for which you are submitting the nominee;
  • A short biographical paragraph about the nominee (fewer than 250 words), summarizing their/your resume´ or otherwise highlighting the contributions they/you would bring to the Committee; and
  • Your/the nominee’s resume´ or curriculum vitae.

When should you apply? The deadline for nominations is June 1, 2018.

Where should you send your nomination? Nominations should be sent to: foia-advisory-committee@nara.gov

Why should you send in a nomination? The FOIA Advisory Committee brings together requesters and agency FOIA professionals to develop consensus solutions to some of the greatest challenges in the administration of FOIA. If you want to make a substantial contribution to improving the FOIA process, this is your opportunity!

How can you keep updated about the Committee and its work? Be sure to watch this blog and follow us on Twitter for updates.

Posted in FOIA Advisory Committee | 4 Comments

Don’t Miss Our Second Annual Open Meeting: May 18, 2018

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We are opening our doors for public comments on May 18, 2018. (NARA Identifier 7859193)

Registration is now open for our Second Annual Open Meeting on Friday, May 18, 2018 from 10:00 a.m. to noon in the William G. McGowan Theater at the National Archives.

The purpose of the meeting is to provide the public with an update on OGIS’s activities, and give interested persons an opportunity to present oral or written statements. During the meeting, Director Semo will highlight our work and observations during Fiscal Year (FY) 2017, and discuss our plans for the remainder of FY 2018. We will also have a panel discussion about the recently-passed recommendations of the FOIA Advisory Committee, after which we will open the floor for public comments.

If you have thoughts to share about our work but cannot join us in person, we encourage you to submit a written statement to ogis@nara.gov. You can also watch all of the action via the livestream on NARA’s YouTube Channel, and use the comment function to share your views.

Be sure to check out our Annual Open Meeting webpage to see the meeting’s agenda and other materials as they become available.

Posted in About OGIS, OGIS events | Leave a comment

Time to Register for Our May 8th Dispute Resolution Skills Training Session!

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Act fast to reserve your seat for our May 8 Dispute Resolution Skills for FOIA Professionals training session. (NARA Identifier 551447)

Registration is now open for our May 8 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! We ask that you register with your government email address and tell us your agency—we want to know where you are coming from.

This training is intended to teach FOIA professionals practical communication skills to help them understand and resolve disputes–a skill that can help you improve communication with not just 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 interested in having us conduct a training session for your staff please contact Carrie McGuire at carrie.mcguire@nara.gov.

Posted in Alternative dispute resolution, Training | Leave a comment