United States Secret Service Reports Steps to Strengthen FOIA Program

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The Secret Service protects the President’s limousine during the 1997 Presidential Inaugural Parade. (NARA Identifier 6520033)

In late February, the United States Secret Service (USSS) FOIA sent us a letter responding to the 12 recommendations we made in our compliance assessment report of their FOIA program. In the letter, USSS reports that they concur with each of our recommendations and explain the steps that are underway to strengthen the FOIA program and improve FOIA compliance.

USSS reports that they are using their FOIA processing and tracking system as a management and quality assurance tool, and are reporting information about the number of pages processed each week to management to highlight the FOIA workload. The FOIA program is also working with the USSS Performance Management Team in their Office of Human Resources to develop new performance measures for FOIA staff.  They are also developing a data-driven backlog reduction plan to reduce the current backlog by 10 percent.

USSS also reports that they have taken a number of steps to address technical issues with their FOIA processing and tracking system that were impacting the FOIA program’s productivity and efficiency. In particular, the USSS reports that they have invested in increased technical support from a contractor to stabilize the system and are providing the FOIA program with in-house technical support. USSS also reports that they are exploring how to provide requesters with information about the status of their requests online.

USSS has also provided us with information about what they are doing to help improve their communication with requesters. Notably, USSS reported that they have developed template letters to provide requesters with an update on the status of particularly old requests and to describe why certain material is exempt from disclosure. USSS also reports that they are re-enforcing the appropriate use of “still interested” letters with the staff and plan to provide additional training to the staff on the proper use of “still interested” letters pursuant to current Department of Justice guidance.

We are excited to hear about all of USSS’ efforts to strengthen their FOIA program, and look forward to continuing to work with agencies to ensure the effective implementation of FOIA. We have closed all 12 OGIS recommendations in light of the USSS’ response.

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OGIS Releases its Fiscal Year 2016 Report

In his welcoming remarks at Monday’s  Sunshine Week celebration at the National Archives (video), the Archivist of the United States noted the substantial effort our agency has put towards improving open government over the last few years, and noted that there is – of course – a lot of work left to do. Our newly-released Fiscal Year (FY) 2016 Annual Report shows that OGIS agrees with that sentiment.

FY16-annual-reportFY 2016 was a particularly exciting time for OGIS: our mediation and compliance programs continued to grow, and the FOIA Improvement Act of 2016 increased our role and visibility in the FOIA process.  We also welcomed the second term of the FOIA Advisory Committee and the establishment of the Chief FOIA Officers Council, and organized the National Archives’ inaugural Sunshine Week event in the William G. McGowan Theater.

The passage of the FOIA Improvement Act of 2016 had a profound impact on OGIS. Our dispute resolution program’s caseload has grown steadily over time, but in the fourth quarter of 2016—after the passage of the FOIA Improvement Act—requests for our services grew by 142 percent over the same period in FY 2015. We are working to ensure that we can continue to meet the incredibly diverse needs of our customers.

We hope you enjoy reading through the report. If you have any thoughts on our activities or suggestions for how to improve our work, we want to hear from you! An hour before the next FOIA Advisory Committee meeting on April 20, 2017, at 9:00 am, OGIS will host our first public meeting to gather input on our activities. Be sure to watch this blog and follow us on Twitter to be reminded  about the public meeting and ways in which you can participate.

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[UPDATED] Sunshine Week 2017 at the National Archives!

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Watch video of the event via YouTube!

Updated Final Agenda

1:00: Welcome by the Archivist of the United States

1:10: A Dialogue about Access to the Nation’s Treasures

  • David Ferriero, Archivist of the United States
  • Carla Hayden, Librarian of Congress

2:00: FOIA After 50

  • Tom Blanton, Director, National Security Archive
  • Ralph Nader, Consumer Advocate and Author
  • Lucy Dalglish, Dean, University of Maryland College of Journalism
  • Thomas M. Susman, Director of Governmental Affairs for the American Bar Association and Founding President of the D.C. Open Government Coalition (Moderator)

3:00: Break

3:15: Recorded Remarks

  • Chairman Jason Chaffetz, House Oversight and Government Reform Committee
  • Ranking Member Elijah Cummings, House Oversight and Government Reform Committee

3:30: Government at Your Fingertips

  • Seamus Kraft, Executive Director, OpenGov Foundation
  • Adam Marshall, Knight Litigation Attorney, Reporters Committee for Freedom of the Press
  • Michael Morisy, Co-Founder, MuckRock
  • Pam Wright, Chief Innovation Officer, National Archives
  • Miriam Nisbet, former Director of the Office of Government Information Services (Moderator)


 

Posted in Sunshine Week 2017 | 15 Comments

Checking in on the Consumer Financial Protection Bureau FOIA Process

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OGIS is waiting by the phone to hear about your experience with the CFBP FOIA Program. (NARA Identifier 6922346)

Have you made a Freedom of Information Act (FOIA) request to Consumer Financial Protection Bureau (CFPB)? Our Compliance Team wants to hear about your experience.

Our compliance review process includes several methods to better understand how an agency FOIA program operates and what kind of challenges or opportunities it faces. In addition to interviewing the FOIA program’s management and surveying the program’s FOIA staff, we also review the requests we have received to mediate FOIA disputes with the agency, review data from Annual FOIA Reports and FOIA litigation against the agency to identify trends, and review a statistically significant sample of the agency’s FOIA case files from the previous fiscal year.  We analyze the information to evaluate the agency’s compliance with the statute, highlight best practices, and make recommendations to improve the FOIA program (you can see all of our agency compliance assessments here).

As the Federal FOIA Ombudsman, we have always believed good customer service is a critical component of a successful FOIA program. In order to better understand the kind of customer service the agency provides, we think it is important to hear from the agency’s customers. If you have filed a FOIA request with CFBP and would like to tell us about your experience, please email ogis@nara.gov.

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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.

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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!

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FOIA Advisory Committee to Meet on January 26th

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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.

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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