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 | Leave a comment

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 | 1 Comment

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.

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FOIA Advisory Committee Set to Vote on Final Report and Recommendations on April 17th

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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.

On Tuesday, April 17th, the FOIA Advisory Committee will wrap up its current two-year term and vote on its Final Report and Recommendations. As regular readers of our blog know, during this term the FOIA Advisory Committee examined specific areas where federal agencies could take action and implement initiatives to improve proactive disclosures, FOIA searches, and the efficient use of agency FOIA resources.

During the Committee’s January 16th, 2018 meeting, the Committee unanimously approved several recommendations, including best practices that agencies can use to improve the administration of FOIA. A draft of the Committee’s Final Report and Recommendations is currently available on the Committee’s Meetings page. The Meetings page also includes links to register to attend the meeting (via EventBrite) and a draft meeting agenda.

We are happy to announce that the Archivist of the United States intends to renew the FOIA Advisory Committee’s Charter for a new two-year term. If you are interested in self-nominating or nominating someone else for the Committee’s 2018-2020 term, be sure to follow us on Twitter or check back on this blog for updates on nomination requirements and deadlines.

Posted in FOIA Advisory Committee | 1 Comment

Outbreak of Interesting FOIA Discussions Reported at CDC Atlanta HQ

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A U.S. Army nurse prepares a hypodermic syringe for an injection. (NARA Identifier 6386407)

On Wednesday, March 28, OGIS’s Mediation Team Lead Carrie McGuire facilitated a FOIA forum at the Centers for Disease Control and Prevention (CDC) in Atlanta, Georgia. This special event brought together FOIA processors, FOIA coordinators, appeals staff and others from across the federal government to discuss FOIA issues of special interest.

For years, OGIS has promoted the importance of agency leadership showing support for the FOIA program. CDC’s Chief Operating Officer, Sherri Berger, demonstrated such support with her opening remarks, which noted CDC’s achievements in reducing the agency’s FOIA backlog. The program continued with a keynote address by Associated Press reporter Mike Stobbe, who traced FOIA’s philosophical roots to the reign of T’sai-Tsung (626 to 649), who created an imperial ombudsman office and invited those with a government grievance to bang a drum on the palace steps. Mike went on to describe how the records he received through FOIA requests provided the basis for his book, Surgeon General’s Warning: How Politics Crippled the Nation’s Doctor (University of California Press, 2014).

Kenya Ford, Senior Attorney with the CDC’s Agency for Toxic Substances and Disease Registry Branch, then presented information about FOIA Exemption 6 and, in particular, the differences between Exemption 6 and the Privacy Act. The forum closed with remarks from Jennie Kneedler, Senior Trial Counsel at the Federal Programs Branch in the Civil Division of the Department of Justice. Ms. Kneedler shared interesting tidbits gleaned from her experience as an attorney who has represented federal agencies in FOIA litigation, such as the importance of documenting scope and details of searches, including use of specific search terms.

Thank you to CDC’s FOIA leadership for making the FOIA forum possible – it was a great day full of interesting presentations and thoughtful questions.

Posted in Team approach, Training | Leave a comment

OGIS Fiscal Year 2017 Report Now Available

We realize that it was a very busy Sunshine Week, so we understand if you missed the fact that in addition to testifying on the Hill and hosting and participating in great events, we also released our Fiscal Year (FY) 2017 Annual Report. This year’s report chronicles our first full year since the passage of the FOIA Improvement Act of 2016, which highlighted OGIS’s crucial role in improving compliance with the statute, and improved our ability to share our frank observations about methods to improve the FOIA process.

Here are a just a few of the report highlights:

  • We experienced a 160 percent overall increase in our caseload and closed more than double the number of cases closed in FY 2017 compared to FY 2016.
  • Our compliance assessment reports continue to show the value of investing in technology to improve the FOIA process; strong management that ensures staff has a clear understanding of their roles and responsibilities, and the FOIA program has sufficient leadership support; and that good communication helps ensure a smooth FOIA process—and helps to prevent disputes that may otherwise lead to litigation.
  • We redesigned our website to make it easier to navigate and mobile-friendly.
  • We held our first Annual Open Meeting, and hosted a meeting of the Chief FOIA Officers Council to discuss the importance of clear communication with requesters and ways to improve customer service.
  • We improved our understanding of the relationship between FOIA and Records Management offices, and supplemented our understanding of how agencies across the government are implementing FOIA by including targeted FOIA questions in the Records Management Self-Assessment.

If you are interested in learning more about our year at OGIS – including how many proposed updates to FOIA regulations we reviewed, agency responses to our compliance assessment reports, and more – we encourage you to download and read the report!

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

Tips for Avoiding FOIA Lawsuits

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Just a few brief tips for keeping FOIA lawsuits out of court. (NARA Identifier 6010581)

Last week our mediation team facilitator, Christa Lemelin, gave a five minute lightning talk at the Department of Commerce Sunshine Week celebration about common mistakes agencies make that could increase the likelihood of a FOIA requester filing a lawsuit against the agency. Here is a brief summary of the three mistakes she shared with the audience, and tips for how to avoid them:

  1. Provide Estimated Dates of Completion. We regularly hear from requesters that the agency’s FOIA process feels like a black box: they see their request go in and they understand that there might be delays in the agency’s response, but the lack of any insight into when they can expect a response is frustrating. Requesters have also told us that they will sometimes file a FOIA lawsuit against the agency because they have no idea about when the agency might respond to the request.

    To address requester frustration, the OPEN Government Act of 2007 required that agencies provide requesters with estimated dates of completion upon request. However, we still hear from requesters who have been unable to obtain this information, and we hear from agencies about how difficult it is to provide an estimated date of completion when, for example, there might be delays outside of the FOIA office’s control or the agency does not know how many pages might be responsive to the request.

    If you are an agency that has been asked for an estimated date of completion, we have a few suggestions for how to proceed. First, remember that an estimated date of completion is just that — an estimate. Be sure to let the requester know that the date is only your best guess and not a deadline. The Department of Justice (DOJ) has issued some very helpful guidance on how to determine what to provide the requester. Second, we have heard from agencies that providing an estimated date of completion can be an ideal opportunity to negotiate the scope of a very broad request.

  2. Proactively Disclose Records. Posting regularly requested records on your website alleviates the need for requesters to file certain FOIA requests – and can help requesters file more targeted requests. Posting frequently requested records in your FOIA Reading Room is also required by law — the 2016 amendments to the FOIA codify DOJ’s guidance that a record requested three times be posted online and require that agencies identify records that are of general interest or use to the public and that are appropriate for public disclosure.

    Proactive disclosure has been a top issue on the radar of the FOIA Advisory Committee. During its most recent term (2016-2018), the Committee unanimously approved several recommendations that help agencies determine types of records to proactively disclose, and make specific suggestions for general categories of records that should be posted in FOIA Reading Rooms.  Learn more about the Committee’s recommendations on the Committee’s Meetings webage.

  3. Clearly Communicate with Requesters. Through our dispute resolution program and in our agency FOIA compliance assessments, we have continued to observe that good communication helps ensure a smooth FOIA process—and helps to prevent disputes that may otherwise lead to litigation.

    The 2016 amendments to the FOIA add some requirements for how agencies must communicate with requesters at several points in the process, including in cases of unusual circumstances and in determination letters. While it has been great to see that agencies have responded to this requirement by including information about dispute resolution services offered by the FPL and OGIS, we have seen a lot of confusion arise from letters that do not provide clear directions about which step the requester should take when. We encourage agencies to use the model language suggested by OIP and OGIS. Further, initial determination letters should clearly explain why a request is denied and provide context where it is appropriate. For instance, if a search returned no records, explain where the agency searched and the terms it used. Such explanations may head off an appeal or the need to provide dispute resolution to the requester.

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

Posted in About FOIA, Alternative dispute resolution, Best practices, Uncategorized | Leave a comment