Join Federal Agencies in Celebrating Sunshine Week 2017

While our neighbors up north have been busy digging out from recent snowfalls, we have been busy thinking about the sunshine! Specifically, we have been putting together some exciting plans for Sunshine Week 2017.

As we have announced previously, we are hosting Sunshine Week 2017 at the National Archives during the afternoon of Monday, March 13. Be sure to watch this page for coming updates about our agenda and to find out how to join he audience!

commerce-sunshine-week-save-the-dateThe National Archives is not the only agency looking forward to this year’s celebration, though. Our friends at the Department of Commerce asked us to share their flyer announcing two events they are holding to mark the occasion. We hope you will plan to join them for their Sunshine Week Kickoff Event in the Research Library on Tuesday, March 14. Commerce will also be hosting speaker sessions on Wednesday, March 15 and Thursday, March 16 at the U.S. Census Bureau.

We also want to make sure that you have blocked off the morning of Monday, March 13 to join our colleagues at the Office of Information Policy (OIP) at the Department of Justice (DOJ) for their Sunshine Week Kick Off Celebration. During the event, DOJ will honor FOIA professionals from across the government who have made extraordinary contributions to the field. To register to attending this event, e-mail your name and phone number to OIP’s Training Officer at DOJ.OIP.FOIA@usdoj.gov, with the subject “Department of Justice Sunshine Week 2017 Event.”

Is your organization or agency hosting a Sunshine Week celebration that you want us to know about? Be sure to let us know in the comments or connect with us on Twitter.

Posted in Sunshine Week 2017, Uncategorized | Leave a comment

DHS FOIA Policy Office Concurs with OGIS Recommendation

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We can all agree on some things, including that this picture of President Nixon and Elvis Presley is amazing. (NARA Identifier 1667921)

Last week we received a response from the Department of Homeland Security (DHS) Privacy Office to our December 2016 FOIA compliance assessment. The DHS Privacy Office is led by the agency’s Chief FOIA Officer, who has specific responsibilities agency-wide for ensuring implementation of the FOIA statute, providing oversight and supporting customer service.

Our assessment of the DHS Privacy Office was based on a review of the office’s policies and public information and interviews with the office’s leadership. The assessment also took into account our observations during assessments of FOIA programs at six DHS components: Customs and Border Protection, Federal Emergency Management Agency, Immigration and Customs Enforcement, Transportation Security Administration, United States Coast Guard, and United States Secret Service.

We reported that the DHS Privacy Office is taking appropriate actions to meet the Chief FOIA Officer’s responsibilities under the law. We recommended that the Privacy Office adopt practices similar to those used by the Department of Justice’s Office of Information Policy to improve components’ compliance with FOIA and adherence to DHS FOIA policy. In particular, we recommended that the Privacy Office use a standard procedure and method for issuing guidance. We also recommended that, when warranted, issues of non-compliance should be raised to higher levels, including to the Secretary’s office; and that the Privacy Office should issue additional recommendations or corrective actions as necessary to bring components into compliance with the law and DHS policy. The Privacy Office responded that it concurs with our recommendation and provided an update on its efforts to put these practices in place.

We learned so much during our assessments of DHS FOIA offices, and greatly appreciate their participation in our agency assessment program. We are also looking forward to learning about the practices at other agencies; the next assessment on our agenda will be for the Consumer Financial Protection Bureau. Watch this blog and follow us on Twitter for updates on our work!

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Let’s Talk about Fees…

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The FOIA fee structure can confuse even highly-experienced requesters. (NARA identifier 541941)

Sometimes even highly-experienced FOIA requesters approach us with questions about FOIA’s admittedly complicated fee structure. We thought it might be useful to break down the current fee structure a little and provide an update on fee provisions included in the FOIA Improvement Act of 2016.

Fee Categories

First, the basic set up for the FOIA fee system is that agencies are allowed to charge certain fees based on the requester’s category. Commercial requesters can be charged all search, review and duplication fees. Requesters that are representatives of the news media, educational institutions, and noncommercial scientific institutions can only be charged for duplication costs – and they receive the first 100 pages for free. Requesters that do not fall into these defined categories are classified as “all other;” these “all other” requesters can be charged search fees – but they get the first two hours free – and for duplication fees – but they get the first 100 pages free. We have included an easy-to-read chart of the categories and allowable charges.

Fee Waivers

Requesters can also ask an agency to waive or reduce fees. Fee waivers demand a much higher threshold for consideration than a fee category.  In order to qualify for a complete or partial fee waiver, a requester must show that “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” The Department of Justice (DOJ)’s guidance to agencies on how to carry out FOIA’s fee provisions includes six analytical factors that agencies should consider when deciding whether to waive or reduce fees. To qualify, requesters should address each of these factors in their requests.  A requester’s financial ability to pay is not considered in this process (see this blog post for an extended discussion about the difference between fee waivers and fee categories).

Deadlines and Agency Penalties

Before we talk about deadlines and agency penalties, there are a few terms of art to help you understand when an agency can and cannot charge fees.

  • “Unusual circumstances” Is defined in the statute as the need to search for and collect records from field offices, the need to search, collect and review a voluminous amount of records, or the need to consult with another agency or multiple components within the same agency. If an agency has “unusual circumstances” the law provides a ten-working-day extension to respond to the request.
  • “Exceptional circumstances” is not clearly defined in the statute. However, the statute does provide some guidance as to what does not qualify and what factors might help determine if exceptional circumstances do exist. If a court finds that exceptional circumstances exist, it may extend the statutory time limits to respond to the request.

The passage of the OPEN Government Act of 2007 added FOIA has included a provision that bars agencies from charging fees if they do not meet certain deadlines for responses. In particular, the amendments to the FOIA prevented an agency from collecting fees if it did not respond to the request within the law’s 20-working-day time limit unless the agency has “unusual” or “exceptional” circumstances.

The FOIA Improvement Act of 2016 further restricts agencies’ ability to charge fees if they miss the time limits, and places new procedural requirements on agencies in order to maintain their ability to charge fees. Currently, agencies are generally not allowed to charge fees if they have “unusual circumstances” but do not respond to the request within the 30-working-day time limit. Agencies retain the ability to charge fees after missing the extended time limit, however, if there are more than 5,000 responsive pages to the request and the agency has made at least three good-faith attempts to reach out to the requester to discuss how to effectively limit the scope of the request. If a court has determined that “exceptional circumstances” exist, the agency now involved in litigation must meet the time limits set by the court in order to be able to charge fees.

We would love to hear any of your thoughts or questions about FOIA fees. Feel free to contact us using the comments section or email us anytime at ogis@nara.gov!

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Mark Your Calendar for Our Upcoming Events!

eventsAs you all begin to fill out your new 2017 calendars, we want to take a few moments to make sure you know about some special events we have planned in the coming months. Please take a moment to write down these dates, and we hope to see you there!

Thursday, January 26 – As we noted last week, the FOIA Advisory Committee will be meeting in the William G. McGowan Theater beginning at 10 am. Join the meeting to learn about the Committee’s work and to hear special presentations from Data.gov and the Department of Health and Human Services (HHS). RSVP to join us in person or bookmark the livestream.

Monday, March 13 – Sunshine Week 2017 at the National Archives will begin in the William G. McGowan Theater at 1 pm. Be sure to watch our event page for updates about the exciting things we are planning for this year’s celebration!

Thursday, April 20 – Join us in the William G. McGowan Theater beginning at 9 am for our inaugural public meeting. Our new Director, Alina M. Semo, will provide the audience with updates about our activities during the last fiscal year and we will open the floor for public comment. Be sure to stick around after the OGIS public meeting for the next session of the FOIA Advisory Committee.

The best way to keep up with news from OGIS is to subscribe to our blog (click the “Follow” button in the top right-hand corner of this blog) or follow us on Twitter. We hope to see you at all of our events!

Posted in About OGIS, National Archives and Records Administration, OGIS events, Sunshine Week 2017 | Leave a comment

FOIA Advisory Committee to Meet on January 26th

FOIA Act Advisory Committee Meeting

David Pritzker, Deputy General Counsel for the Administrative Conference of the United States, introduces himself to Megan Smith, the United States Chief Technology Officer, before the start of the FOIA Advisory Committee meeting at the National Archives in Washington, DC, on July 21, 2016. NARA photo by Brogan Jackson.

Mark your calendar and RSVP to join us for the next session of the FOIA Advisory Committee on January 26, 2017. The meeting is scheduled to run from 10:00 am to 1:00 pm in the National Archives’ William G. McGowan Theater.  Please register using the Eventbrite web site to register, and use the Special Events entrance on the Constitution Avenue side to attend the meeting.

During the Committee’s October 2016 meeting, members decided to create three subcommittees to examine specific issues during its two year term: (1) Search, (2) Proactive Disclosure and Accessibility, and (3) Efficiencies and Resources. During the upcoming meeting, the Committee and members of the public will hear updates on each of the subcommittee’s plans. The agenda will also feature two speakers: a representative from Data.gov will speak to committee members about the experience of setting up the federal government’s data repository and any lessons that might apply to proactive disclosure in the FOIA context; and a representative from the Department of Health and Human Services (HHS)will speak about his experience advocating for the HHS FOIA program with the department’s leadership.

FOIA Act Advisory Committee Meeting

Brainstorming during the FOIA Advisory Committee meeting at the National Archives in Washington, DC, on July 21, 2016. NARA photo by Brogan Jackson.

Like at past FOIA Advisory Committee meeting, the audience will also have an opportunity to provide committee members with feedback and input. In order to attend, however, you must register by Monday, January 23.

If you cannot attend the meeting in person, a live broadcast of the meeting will be available via the National Archives’ YouTube Channel. Be sure to check out the Committee’s web page and follow @FOIA_Ombuds for a link to the broadcast.

Posted in FOIA Advisory Committee | 1 Comment

Q&A with OGIS’s New Director, Alina M. Semo

Alina Semo, Director of the Office of Government Information Services

Alina Semo, Director of the Office of Government Information Services

1)     Please tell us a little about yourself.

I am the product of parents who emigrated to the United States to avoid continued religious, artistic and professional persecution at the hands of the Communist Romanian regime.  In direct and indirect ways, the influences of my father, who made his living in classical music as a professional violinist for the Baltimore Symphony Orchestra, and my mother, an organic research chemist who worked at Johns Hopkins University for 30 years, have led me to where I am today.

My parents, grandmother and I arrived in New York City with only a few suitcases we could carry when I was nearly ten, eventually settling in Baltimore. I attended public junior high school and high school in Baltimore, and after graduation headed to the University of Maryland, College Park [GO TERPS!]. My intent when I began college was to transfer to Duke University to enroll in the pre-med program. Fate intervened, though, when my father, who was then the Associate Concertmaster with the Baltimore Symphony Orchestra, went on strike with the rest of the musicians’ union. Without a clear idea of how long the strike would last, I opted to save my parents money by staying at the University of Maryland.

During college, I abandoned pre-med in favor of a major in Government and Politics and developed an enduring interest in international human rights and the law.  During this time, I interned with the American Association for the Advancement of Science International Human Rights program, and worked on issues involving scientists world-wide whose human rights were being violated – much in the same way my mother faced persecution for her work while we lived in Romania.

At the urging of a college professor, I decided to attend Georgetown Law School and dabble in international human rights issues when time permitted.  After I graduated, I spent three years in private practice and realized I wasn’t doing what I really wanted to do – which is to help people – and to make a difference.

For the last few decades, I have worked as a lawyer in the federal government. In my roles at the Department of Justice (DOJ), Federal Bureau of Investigation, and the National Archives I have been able to make a difference by not only helping out individual agencies and employees with their legal issues, but also by representing the broader interests of the American public.

2)     What was your first experience with FOIA?

During law school I worked as a law clerk at DOJ’s then Office of Information and Privacy (the office in now called the Office of Information Policy).  Before I began clerking for DOJ, I can honestly say I had not heard much – if anything – about FOIA.  I learned quickly, though, and had the opportunity to collaborate on a section of the DOJ’s FOIA/Privacy Act Guide that explains an agency’s responsibility to create a Vaughn Index during litigation. The last time I checked, the foundation I helped lay for that section is still there today.

3)     You have played an important role in a number of lawsuits that related to access to government records. How do those experiences inform your views of FOIA and the role of OGIS?

I often like to joke about the fact that I had some hand in most of the cases discussed in today’s DOJ FOIA Guide– for better or for worse.  While some lawyers might think of FOIA as a boring part of the law, it has myriad legal – and factual – ramifications. And while I enjoy digging into the facts of a FOIA case and arguing points of law, I am a conciliator at heart.  I have settled many cases – either bilaterally or through mediation.

It’s amazing what can happen when you get parties to sit down across the table from each other, and really talk about what they each want and need.  Yes, sometimes talks break down, parties get entrenched.  But it is possible to reach successful resolutions – where everyone walks away feeling as though they got a partial (if not full) victory.

I also believe there are a number of lawsuits that are needlessly filed; if only communication had been better between the requester and the agency – a complaint could have been avoided.  That’s where OGIS was originally designed to come in; before litigation commences, to see if a reasonable resolution can be reached between and among the parties.

4)     What motivated you to become the federal FOIA Ombudsman?

The founding OGIS Director, Miriam Nisbet, has been a strong presence in my professional career for many years.  Miriam and I have a long history of our professional paths continuing to cross.

Miriam took the congressional mandate of the 2007 Open Government Act and ran with it by establishing and nurturing a highly successful FOIA Ombudsman shop with limited resources.  She devoted countless hours to national and international outreach to get the word out about OGIS and its important role in the federal FOIA scheme.  She encouraged me to apply when the Director position became vacant earlier this year.  I wanted very much to continue the wonderful work that Miriam has done, and to continue to have OGIS play an integral role in the FOIA community.  The 2016 FOIA Improvement Act has given OGIS even more to do, so I will be busier than ever leading a staff who is committed to both FOIA mediation and compliance issues.

Posted in About OGIS, Message from the Director, National Archives and Records Administration | 1 Comment

FOIA Improvement: Improving Agency FOIA Regulations

Note: This entry is another in our series of occasional blog posts updating our efforts to implement new provisions of the Freedom of Information Act (FOIA) signed into law by President Obama on June 30, 2016.

Regular readers of the Federal Register may have noticed a recent spike in notices related to amendments of agency FOIA regulations. This increase is due to agencies hurrying to update FOIA regulations before the end of calendar year 2016, as directed by the FOIA Improvement Act of 2016.

In addition to requiring that agencies update their FOIA regulations to reflect the FOIA Improvement Act’s changes, Congress also required that the updated regulations “include procedures for engaging in dispute resolution services through the FOIA Public Liaison and the Office of Government Information Services.” We have reviewed many updated FOIA regulations since the FOIA Improvement Act of 2016 was passed. While many of them include language regarding the availability of dispute resolution services – either via the FOIA Public Liaison or OGIS, we have seen an increasing number of revised regulations that do not reference OGIS’s dispute resolution services as a non-exclusive alternative to litigation in the administrative appeals section of their regulations.  Neither the FOIA statute nor the 2016 amendments explicitly compel agencies to do so.  Nevertheless, OGIS has made this recommendation to all agencies as a best practice, consistent with guidance from the Department of Justice (DOJ).

helpAs we have previously explained, the FOIA Improvement Act expands OGIS’s role in the FOIA process. Congress now requires that agencies alert requesters of our dispute resolution services at two distinct points in the FOIA process—first, when the agency makes an adverse initial determination, and second if the agency needs more than ten (10) additional days to process a request in the case of “unusual circumstances.” (The law defines “unusual circumstances” as the need to search for and collect records from field offices, the need to search, collect and review a voluminous amount of records, or the need to consult with another agency or multiple components within the same agency,).

Requesters should also be informed of our dispute resolution services in the agency’s final appeal response letter as an alternative to filing suit in federal court. FOIA provides the right to file a suit in a federal district court if the requester is dissatisfied with an agency’s response after the administrative appeals process has been exhausted. In 2007, Congress provided requesters with another option after the administrative appeals process by creating OGIS as a “non-exclusive alternative to litigation” (5 U.S.C. § 552(h)(3)). In light of this role, the DOJ Office of Information Policy (OIP) encourages agencies to include a standard paragraph about OGIS in their final appeal response letters; and(the appeals section of OIP’s template for agency model regulations also recommends inclusion of OGIS’s dispute resolution services.

As OGIS continues to regularly review and comment on proposed FOIA regulations and amendments, we will continue to suggest explicit reference to  OGIS in the appeals section of agency regulations. If you would like the chance to review and comment on proposed FOIA regulations, you may wish to subscribe to the Federal Register and set up alerts for terms like “FOIA” and “Freedom of Information Act.” This will ensure that you never miss a chance to make your voice heard as new regulations are proposed.

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OGIS Releases Compliance Assessment of DHS FOIA Policy Office

dhs_reports_pageWe are happy to announce the release of our latest FOIA compliance assessment – the Privacy Office of the Department of Homeland Security (DHS). This office, which is led by the agency’s Chief Privacy & FOIA Officer, issues FOIA guidance to DHS’s components, monitors component performance, and issues required reports. Like our previously released assessments, this report is based on interviews of key FOIA staff and a review of FOIA policy and documents. What makes this report a little different is that it also includes observations made during our compliance assessments of the FOIA programs at six DHS components. We took this approach in recognition of the unique role that the Chief Privacy & FOIA Officer has in leading DHS’s FOIA program.

FOIA requires agency Chief FOIA Officers to:

  • support efficient and appropriate compliance with FOIA and make recommendations as necessary to improve implementation;
  • provide oversight of FOIA operations by monitoring implementation and reporting to the Attorney General as required; and
  • support customer service by taking certain steps to improve public understanding of FOIA.

We found that the DHS Privacy Office is meeting these requirements by providing targeted services to components and providing them with guidance on FOIA policy issues. The Privacy Office monitors component performance throughout the year and prepares required reports. The Privacy Office further supports the work of the components by investing in information technology that helps the 22 agencies within the Department to be more responsive and assist requesters in understanding the process.

Our report also notes varying degrees of awareness of, and adherence to, DHS FOIA policies among the reviewed components. We recommend that the DHS Privacy Office adopt standard procedures for its guidance – similar to those used by the Office of Information Policy at the U.S. Department of Justice – to address these deficiencies.

Posted in Review | 1 Comment

Planning is Underway for Sunshine Week 2017 at the National Archives

sw2017It’s wintery outside, but we at OGIS are busy planning Sunshine Week 2017 at the National Archives! Mark the afternoon of Monday, March 13, 2017 on your calendars and plan to join us in the William G. McGowan Theater for a celebration of sunshine and open government.

2016’s Sunshine Week  at the National Archives event attracted nearly 400 attendees, including government employees, representatives of civil society organizations, journalists, and interested members of the public. We hope 2017 will be even bigger. Sunshine Week 2017 at the National Archives is free and open to the public, both in person and via a live web stream; for those who miss out, we also post video after the event (check out the video of our 2016 event here).

Sunshine Week 2017 at the National Archives will include an update on OGIS’s activities and reports over the past year from OGIS’s new Director, Alina M. Semo. There will also be opportunities to share your thoughts about our activities and how to improve the FOIA process.

Do you have a topic that you would like to see on our Sunshine Week 2017 agenda? Let us know on Twitter or email ogis@nara.gov!

Posted in Sunshine Week 2016, Sunshine Week 2017 | 1 Comment

Check out the FOIA Advisory Committee’s Meetings on YouTube

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YouTube and the National Archives Catalog both host their fair share of cute cats. (NARA Identifier 175914)

It turns out that you can find something other than great cat videos on YouTube: videos of all of the past meetings of the FOIA Advisory Committee!

You can find all of the videos, including footage of the latest meeting on October 25, on a playlist on the National Archives’ YouTube account. Check out Part 1 of the meeting to see a presentation from the U.S. Access Board and the General Services Administration about Federal accessibility requirements for all material that is posted on government websites and hear the Committee discuss how these requirements intersect with agency efforts to make available to the public more information released under FOIA. Part 2 of the video includes the Committee’s discussion about the issues its members plan to address during its two-year term. The Committee decided to set up subcommittees to address proactive disclosure and accessibility requirements; search for records; and resources and efficiencies.

Created in May 2014 as part of the second United States Open Government National Action Plan, the FOIA Advisory Committee works to foster dialog between the administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.

The National Archives also posts videos of many of the events held in the William G. McGowan Theater, including our March 2016 event celebrating open government, Sunshine Week 2016 at the National Archives. We hope that you will take some time to browse the National Archives’ offerings and let us know if you find a new favorite video!

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