Department of Justice Releases New Guidance on FOIA Exemption 4

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As you may have heard, on June 24, 2019, the U.S. Supreme Court  issued an opinion on a case involving the “privileged or confidential” requirement of FOIA Exemption 4, Food Mktg Inst. v. Argus Leader Media, 139 S. Ct. 915 (June 24, 2019). Exemption 4 protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential” and is intended to protect the interests of both the government and submitters of information. The exemption covers two distinct categories of information in federal agency records: (1) trade secrets; and (2) information that is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential.The Argus Leader decision overturned the definition of “confidential” in Exemption 4 established by the U.S. Court of Appeals for the D.C. Circuit over forty years ago in Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). Agency FOIA programs, as well as requesters seeking information that may be affected by Exemption 4, have eagerly awaited guidance from the U.S. Department of Justice’s Office of Information Policy (OIP) on how Exemption 4 should now be analyzed and applied in the wake of the Supreme Court’s decision.

On October 4, 2019, OIP issued their updated guidanceOIP also issued a step-by-step guide to further assist agencies in determining if commercial or financial information obtained from a person is confidential under the new standard of Exemption 4.  Previous case law set forth various tests for what material is considered “confidential.” In Argus Leader, the Supreme Court stressed that the term “confidential” should be given its ordinary meaning.  OIP’s step-by-step guide helps agencies think through the various issues that arise under this new analysis.

First, agencies must check whether the submitter customarily keeps the submitted information private or closely-held. This can be determined by checking directly with the submitter, or, in situations where there are a large number of submitters and it would be difficult to check with each submitter individually, looking at industry practices concerning the information. If the answer is no, the information is not confidential. If the answer is yes, then we move to the second step in the analysis.

Next, agencies need to ask whether they provided an express or implied assurance of confidentiality when the submitter shared information with the government. “Express” assurance, per OIP’s guidance, “can be found in direct communications with the submitter, as well as through general notices on agency websites or … through regulations indicating that information will not be publicly disclosed.” If express assurance is found, then the information is confidential. In the same vein, if the agency provides explicit notification that the submitted information will be publicly disseminated, no express assurance of confidentiality exists. 

For “implied” assurance, OIP recommends that agencies “look to the context in which the information was provided to the government to determine if there was an implied assurance of confidentiality.” For example, if the government typically keeps the submitted information confidential, or more broadly treats information related to the submitted information confidentially, there could be an implied assurance of confidentiality. OIP provides an example: an agency’s long history of treating financial information confidentially could create the implied assurance that similar financial information will also receive confidential treatment. Similarly, if agencies have a long history of publicly disseminating the information submitted, it would not be reasonable for a submitter to expect that its information would be held confidentially.

As agencies put this guidance into practice, we expect many questions will arise. Agencies may contact OIP’s FOIA Counselor Service with any questions regarding this new Exemption 4 guidance. As always, FOIA requester service centers and FOIA Public Liaisons are available to assist with pending requests, as is OGIS!  Agency contact information is available on FOIA.gov

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OGIS celebrates 10th anniversary

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OGIS marked its 10th anniversary in September 2019. While aluminum or tin are the traditional gifts to commemorate a decade, we are celebrating our 10 years as the FOIA Ombudsman with cake–-on October 10, 2019, National Ombuds Day!

We are pleased that our work has resulted in a culture shift in the FOIA landscape. Dispute resolution—both through OGIS and agency FOIA Public Liaisons—is baked into the FOIA process, and communication between requesters and agency FOIA professionals occurs much more often than it did a decade ago. On a more systemic level, agencies have welcomed OGIS as a neutral assessor of their FOIA policies, procedures and compliance.

Whether helping individual requesters or with systemic issues, we are proud that we have established ourselves as an advocate for the FOIA process.

Since opening our doors in 2009, OGIS has:

  • Responded to nearly 20,000 requests for assistance;
  • Published 17 assessments of agency FOIA programs and FOIA issues;
  • Published nine Annual Reports which are submitted to Congress and the President;
  • Taught hundreds of FOIA professionals dispute resolution skills to help them fulfill their statutory duties;
  • Testified before both the Senate and the House of Representatives;
  • Reviewed and commented on countless agency FOIA regulations;
  • Chaired and managed three terms of the FOIA Advisory Committee, which brings together FOIA experts from inside and outside of government to identify solutions to FOIA’s biggest challenges;
  • Organized four Sunshine Week celebrations at the National Archives
  • Hosted four Chief FOIA Officer Council meetings; and
  • Connected both nationally and internationally with individuals and organizations who are working to make access happen at every level of government both here and abroad.

We are so grateful for the opportunities we have had to improve the FOIA process over the last 10 years, both individually and systemically. While we don’t know what the next 10 years will bring, we do know that OGIS will continue to advocate for the FOIA process to work as intended.

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Education FOIA Compliance Assessment Report Now Available

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OGIS’s latest FOIA compliance assessment shows that opportunities exist for the Department of Education’s Chief FOIA Officer to fulfill the statutory duties of ensuring compliance with FOIA and recommending improvements to FOIA implementation.

The Department of Education assessment, the 13th conducted by OGIS, makes seven actionable recommendations for strengthening Education’s FOIA program, which received 3,041 FOIA requests in Fiscal Year 2018. OGIS assessments are based on analysis of FOIA data and applicable documents, direct observation and review of agency FOIA case files, a survey of agency FOIA professionals, and interviews with agency employees and officials.

Earlier this year, after we completed our work but before our report was written, Education’s FOIA operations moved to the Office of the Secretary, and the Director of the Office of the Executive Secretariat became the Chief FOIA Officer. The move raises the profile of the FOIA office within the Department and presents an opportunity for the Chief FOIA Officer to ensure FOIA compliance.

Among the seven recommendations we make are that to comply with FOIA, Education must update its FOIA regulations to reflect amendments to FOIA as well as the Department’s processes for implementing the substantive and procedural changes, and that Education must provide estimated dates of completion to requesters who seek such information.

We also make several recommendations regarding tracking and establishing response time performance standards for program office records searches; using data to set goals for cases closed and pages reviewed by each FOIA processor; and incorporating performance standards into performance plans for all employees with FOIA responsibilities.

To learn more about the Education FOIA program and our recommendations, please download the report.

We will follow up with the Department in 120 days to learn what steps they have taken in response to our recommendations.

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Leveraging Technology in FOIA Searches

switchboardSearching for responsive records under FOIA works best when processors cross disciplines to collaborate with technology experts at their respective agencies. An OGIS assessment of the 2019 Chief FOIA Officer (CFO) reports shows that while a majority of agencies report using technology to facilitate efficiency in conducting searches, only about one in five agencies report collaborating with colleagues with technology expertise who are outside of the FOIA office.

The seven-page assessment, titled Leveraging Technology to Improve FOIA Searches,  focuses on three recommendations from the 2016-2018 term of the FOIA Advisory Committee to the Archivist of the United States aimed at improving searches. One of the three recommendations by the Committee was that the Office of Information Policy (OIP) at the U.S. Department of Justice (DOJ) collect detailed information in CFO reports regarding specific methods and technologies that agencies are using to search their electronic records, including email. OGIS examined the  CFO reports and summarizes the responses to this question in this assessment.

Examples of how agencies are leveraging technology are included in the report. See an idea that you wish to know more about? Contact OGIS and we will put you in touch with your counterparts at other agencies to start a discussion.

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Join Us for the Next FOIA Advisory Committee Meeting!

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The Freedom of Information Act (FOIA) Advisory Committee has come full circle on several of its 2018 recommendations, including that the Chief FOIA Officers (CFO) Council study FOIA technology across agencies. The co-chairmen of the CFO Council Technology Subcommittee—Eric Stein of the State Department and Michael Sarich of the Veterans Health Administration—will report back to the FOIA Advisory Committee at its next meeting on September 5, 2019, in the William G. McGowan Theater at the National Archives in Washington, DC. The meeting is from 10 a.m. to 1 p.m.

Since the Council’s Technology Subcommittee formed in September 2018, FOIA professionals from 11 departments and agencies have assessed the FOIA IT landscape and are identifying best practices and recommendations for agencies in accordance with the FOIA Advisory Committee’s recommendation.

Also on the agenda for the FOIA Advisory Committee are updates from the Committee’s three subcommittees—Records Management, Time/Volume, and Vision—and an update on previous Committee recommendations from the 2016-2018 term and the 2014-2016 term.  A public comment period concludes the meeting.

If you are interested in attending the September 5, 2019, meeting, please register online. You will go through security screening when you enter the building. For those outside the DC area, the meeting will be live-streamed on the National Archives YouTube channel.

The meeting is the fifth of the 2018-2020 term of the FOIA Advisory Committee, which is tasked with studying FOIA across the government, soliciting public comments, and recommending improvements to the Archivist of the United States. The National Archives established the Committee in 2014 and its members, appointed by the Archivist, come from both inside and outside the government. Alina M. Semo, Director of the Office of Government Information Services (OGIS), chairs to the Committee, and National Archives staff manages its work.

Congress created the CFO Council in the FOIA Improvement Act of 2016. The directors of OGIS and the Department of Justice’s Office of Information Policy co-chair the Council, which must meet publicly at last once a year in accordance with FOIA. The Council met on August 5, 2019. If you missed it, you can watch here.

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Share Your Thoughts with the FOIA Advisory Committee

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What challenges do you face as you navigate the FOIA process? Whether you are an agency FOIA professional or a FOIA requester, the Federal FOIA Advisory Committee wants to hear from you.

The Committee is asking both those who administer and use the Federal FOIA to take a voluntary survey to help inform its understanding of FOIA challenges.

Your privacy will be protected — no personal information is collected in either the agency or the requester survey and no identifying information will be shared. If you decide to take the survey (and we hope you will), you may change your mind and withdraw at any point in the survey. You may also choose to skip any questions that you do not wish to answer.

Agency FOIA professionals can access the survey here, while FOIA requesters can access the survey here. The survey, which opened in July, is open through Labor Day — Monday September 2nd.

The FOIA Advisory Committee is a group of 20 FOIA experts from both inside and outside of government who are tasked with studying FOIA across the government, soliciting public comments, and recommending improvements to the Archivist of the United States.

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Join us Online for Today’s Chief FOIA Officers Council Meeting

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Recent changes to the Freedom of Information Act (FOIA) landscape and an update on FOIA and technology will be discussed at the August 5, 2019 public meeting of the Chief FOIA Officers Council, beginning at 10:00 a.m. EDT. You may join us online via the National Archives YouTube channel.

The recent U.S. Supreme Court decision in Food Marketing Institute v. Argus Leader Media has implications for how some agencies apply FOIA Exemption 4 to confidential information. Bobak Talebian from the Department of Justice Office of Information Policy (OIP) will discuss this decision with members of the Council.

The Foundations for Evidence-Based Policymaking Act of 2018 (H.R. 4174) requires Federal agencies to make data publicly available by default in a secure manner. The Office of Management and Budget’s Kirsten Moncada will discuss the impact of this legislation on agency FOIA programs.

Michael Sarich of the Veterans Health Administration and Eric Stein of the State Department, co-chairmen of the Council’s Technology Subcommittee, will discuss the group’s work since forming in September 2018.

The directors of the Office of Government Information Services (OGIS) and OIP co-chair the Council, which must meet publicly at least once a year in accordance with FOIA. The statute mandates that the Council develop recommendations for increasing FOIA compliance and efficiency; share best practices and innovative approaches; and work on initiatives to increase transparency and FOIA compliance.

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Getting to Know the FOIA Advisory Committee: Abioye Mosheim  

Abi Mosheim Staff Photo 2018Today we present an interview with Abioye Mosheim, Chief FOIA Officer and Assistant General Counsel for FOIA, Privacy and Records at the Consumer Product Safety Commission and a member of the FOIA Advisory Committee. Over the next year, we will share our interviews with other members of the Advisory Committee so that you can get to know them better.

Why did you seek to serve on the FOIA Advisory Committee?

First and foremost I wanted to solve FOIA problems related to time and volume. I also wanted to share my experiences in processing and managing the FOIA at two small agencies with very different challenges—the Copyright Office and the Consumer Product Safety Commission. And I wanted to learn more from fellow FOIA professionals [and] gain knowledge that I could take back to my agency and put to good use.

What do you hope to accomplish?

I hope to work with FOIA colleagues to solve problems related to the tension between the 20-day statutory deadline and the voluminous records that must be reviewed and processed in response to most requests. If we can come up with proposed solutions that benefit the rest of the FOIA community, I will be happy.

What is FOIA’s biggest challenge?

The biggest challenge to agencies is having enough resources to respond to FOIA requests within the 20-day statutory timeframe. Those problems [include] having enough staff to both process requests and expertly advise requesters regarding the status and substance of their requests; not having enough money to retain good, dedicated staff; and not having enough money to purchase technology that can quickly and comprehensively search for, review and redact voluminous amounts of records.

Tell us about your favorite FOIA moment.

One of my favorite FOIA moments was geeking out with colleagues over how to respond to a request that involved congressional records. We argued for about an hour over our interpretations of the case law and the best way to process the request. It was the most passionate FOIA discussion I have had to date and I thoroughly enjoyed it. A FOIA request that challenges you and makes you grow in your understanding of the law is a gift.

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Upcoming USCIS Webinar

DF-ST-99-05341Thinking about FOIA beyond its 53rd birthday on July 4th? Interested in how to submit and track FOIA and Privacy Act requests and receive documents digitally from U.S Citizenship and Immigration Services (USCIS)? The agency will demonstrate the system and answer the public’s questions during  an hour-long webinar at 2 p.m. EDT Tuesday July 9th.

The system, known as the FOIA Immigration Records System, or FIRST, allows FOIA requesters to submit online requests for their own records. USCIS’s transition to FIRST has been in the works for several years to replace a system that it began using in 1999. In an OGIS assessment of the USCIS FOIA program, published in February 2018, we noted that several features and functions of the FIRST system could further improve efficiency and customer service.  OGIS also recommended that USCIS continue to explore how technology can further improve the processing of Alien Files (A-Files), the official government record for all immigration and naturalization records created or consolidated since April 1, 1944, and which are not static records.

USCIS receives and processes the largest number of FOIA requests government-wide—processing more than 186,000 requests in Fiscal Year 2018. The vast majority of those requesters seek access to A-Files.  Soon, USCIS online account holders can make online requests on behalf of another person. Later this year, they can make online requests for non-A-File material such as policies or communications.

To join the event:

Webinar link

Call-in number: (888) 324-8137

Participant passcode: 6881475

To request a disability accommodation, please email public.engagement@uscis.dhs.gov by 10 a.m. EDT Monday July 8, 2019.

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It’s a Wrap: OGIS’s Open Meeting

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If you missed the Office of Government Information Services (OGIS) annual meeting on June 14, 2019, it is not too late to listen in on the conversation—we invite you to watch the meeting on the National Archives YouTube channel.

The Freedom of Information Act directs OGIS to host an annual meeting to inform the public about our work. We see this as a valuable opportunity to consider our progress as the FOIA Ombudsman. Archivist of the U.S. David S. Ferriero opened this year’s meeting with comments about the importance of FOIA and OGIS’s work. OGIS Director Alina M. Semo then discussed OGIS’s accomplishments as described in OGIS’s 2019 Report for FY 2018. Finally, members of OGIS’s staff shared an informal conversation about the Office’s challenges and achievements.

Even though the meeting—and the public comment period—are over, we would still love to hear from you. If you have thoughts about OGIS’s work, please feel free to get in touch with us at ogisopenmeeting@nara.gov.

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