OGIS’s Sunshine Week Wrap-Up

However you celebrated Sunshine Week 2013, we hope it was a good one! (ARC Identifier 553239)

Whew! We at OGIS have caught our breath after a hectic Sunshine Week during which we joined folks from both the agency and requester communities in promoting the importance of open government and freedom of information. (Of course, these values are just as important during the other 51 weeks of the year.) If you weren’t able to attend any of the events in Washington, D.C., or join the conversation, OGIS is here to help with a Sunshine Week wrap-up of some of the events held March 11-15.

The Department of Justice kicked off the week on Monday March 11 with its fourth annual Sunshine Week Celebration. Melanie Ann Pustay, director of the Office of Information Policy, announced the release of the first chapter of the 2013 Guide to the Freedom of Information Act. The chapter focuses on FOIA Exemption 2, which changed after the U.S. Supreme Court’s 2011 decision in Milner v. Dep’t of the Navy. The DOJ event also featured FOIA success stories brought by speakers from five agencies — Bianca Oden of the General Services Administration, Lisa Babcock of the Small Business Administration, Kathleen Styles of the Department of Education, Denise Weber of the National Oceanic and Atmospheric Administration, and Trina Porter of the Office of Personnel Management.

Archivist of the United States David Ferriero and OGIS Director Miriam Nisbet welcomed agencies and requesters to the National Archives and Records Administration (NARA) where the original Freedom of Information Act was on display. Archivist Ferriero noted that he had sent a message to NARA’s 2,500 employees reminding them that FOIA is everyone’s responsibility and asked other agency heads to follow his example. A demonstration followed of FOIAonline, the multiagency FOIA portal that launched October 1, 2012, and is designed to streamline the FOIA process for both agencies and requesters. Six agencies, including our parent agency, NARA, are partners.

Tuesday brought a discussion of “Open Government in the Second Term” with the Center for Effective Government and the Electronic Privacy Information Center. Director Nisbet addressed some areas of FOIA to focus on in the coming years, including revisiting fees, enhancing customer service and further harnessing technology. Lisa Ellman, who leads the Open Government Partnership in the White House, and Krista Boyd, minority counsel to the House Committee on Oversight and Government Reform, joined Director Nisbet. Ellman shared examples in which open data has been used by non-government entities to enhance access to government information. Boyd talked about the FOIA Oversight and Implementation Act of 2013 (“FOIA Act”), a draft of which was released for comment early in the week. The bill, H.R. 1211, introduced on Friday March 15, features provisions that would establish the presumption of openness, strengthen the use of dispute resolution in the FOIA process, establish a Chief FOIA Officer Council, establish a single portal for FOIA requests, mandate FOIA regulations updates, and enhance the role of OGIS in the FOIA process. See a bill summary here.

OGIS Director Nisbet joined other open government advocates later Tuesday for a discussion about FOIA sponsored by the Congressional Transparency Caucus. The panel, moderated by Daniel Schuman, policy counsel at the Sunlight Foundation, opened with remarks from Caucus Co-Chairman Rep. Mike Quigley of Illinois, who encouraged Federal agencies to join FOIAonline.  “Every agency needs to participate, not just a handful,” Rep. Quigley said. Gavin Baker, open government policy analyst at the Center for Effective Government, likened FOIAonline to an important tool with adaptable functions for every agency. “FOIAonline is like a Swiss Army Knife,” he said. “It’s got a corkscrew. It’s got a nail file. It’s got everything.”

Other nongovernmental organizations (NGOs) that used Sunshine Week to call for more agency participation in FOIAonline include the American Society of News Editors, the National Security Archive, the Project on Government Oversight and the Sunshine in Government Initiative (SGI).  FOIA Oversight and Implementation Act of 2013 would establish a pilot program to review FOIAonline. SGI marked Sunshine Week with an award to two members of the FOIAonline team: Tim Crawford, senior policy adviser on open government at the Environmental Protection Agency (EPA), and Larry Gottesman, EPA’s National FOIA Officer.

On Wednesday, Director Nisbet testified before the Senate Committee on the Judiciary at a hearing marking five years since Congress passed the OPEN Government Act, which amended FOIA and created OGIS. Director Nisbet stressed one of the most important changes to the law—the introduction of dispute resolution into the FOIA process. “OGIS seeks to more strongly connect FOIA professionals, legal counsel and dispute resolution professionals to embed dispute resolution firmly into the FOIA process with the goal of preventing and resolving disputes,” she told the panel. Director Nisbet discussed OGIS’s 2013 recommendations for improving FOIA, including implementing dispute resolution for conflicts into the FOIA process and top-down agency support for reminding all Federal employees that the responsibility for responding to FOIA requests rests with everyone. Director Nisbet also announced that in the coming year, OGIS plans to work with stakeholders both inside and outside government to study the issues of immigration records and FOIA fees. Watch the hearing here.

The House Committee on Oversight and Government Reform also held a hearing Wednesday addressing open government generally and discussing the draft of the FOIA Act that was posted the day before. “Together, we need to do better” on open government, Chairman Darrell Issa said.  “We have an obligation and an opportunity to create more transparency.” Four witnesses representing NGOs shared their observations on the draft FOIA bill, the landscape of FOIA and of access to government information generally, and on other proposed open government measures including an amendment to the Federal Advisory Committee Act.

On Friday, Director Nisbet joined other open government advocates to celebrate the 15th annual National Freedom of Information Day at the Newseum. Director Nisbet spoke about the government efforts to post accountability information without waiting for a FOIA request to be made.  Noted First Amendment lawyer Floyd Abrams, whose decades of legal work is the subject of a new book, Nuanced Absolutism by law professor Ronald K.L. Collins, recalled the early days of FOIA when he was not a fan. It seemed “unseemly,” Abrams said, for journalists to have to ask the government for information. Now, however, Abrams has come around. “The Freedom of Information Act is an American treasure … it’s an American original.”

Finally, several NGOs used Sunshine Week to recommend Freedom of Information Act (FOIA) policy changes, including tweaking OGIS’s role in the FOIA process. OGIS is pleased to have NGO support (along with support from agencies!) and we hope to continue working with all FOIA stakeholders in the weeks and months (and years) ahead.

A few NGO recommendations, in no particular order:

  • Strengthen and expand OGIS by giving it more staff and power in offering mediation services and reviewing agency FOIA policies, procedures and compliance (Center for Effective Government (formerly OMB Watch))
  • Provide OGIS with more funding and expand OGIS’s enforcement mechanisms (Sunshine in Government Initiative, American Society of News Editors)
  • Promote the availability and importance of mediating FOIA disputes with OGIS to avoid the animosity and costs of litigation (National Security Archive)
  • Strengthen OGIS, including by giving it the ability to directly request its budget from Congress via a dedicated budget line item (The Sunlight Foundation).
  • Provide OGIS with more involvement in FOIA rulemaking and compliance; give OGIS more authority and more resources to carry out its mission (Project on Government Oversight)