FOIA Advisory Committee begins setting priorities

 

 

Expanded oversight of the Freedom of Information Act (FOIA) process, increased proactive disclosure, and reforming—or perhaps eliminating—fees emerged as top priorities of the FOIA Advisory Committee during its inaugural meeting June 24.

The committee—comprised of 10 government members and 10 non-governmental members with considerable FOIA expertise—is mandated in the second Open Government National Action Plan (NAP) with studying FOIA across the government and advising on ways to improve FOIA.

“FOIA administration and its process is not something that is or should be entirely government run; it is a partnership between the government and requesters,” Jay Bosanko, Chief Operating Officer of the National Archives and Records Administration (NARA), told the committee.

The NARA-run committee spent part of its first meeting brainstorming and informally voting on ideas for legislative, policy or process changes that could improve FOIA, a process facilitated by Lynn Overmann, senior adviser in the White House Office of Science and Technology Policy.

Committee Chair and Office of Government Information Services (OGIS) Director Miriam Nisbet noted that the brainstorming is not intended to set the committee’s agenda in stone. “This is a two-year effort,” she said. “We are not going to be able to solve everything today or come up with everything we want to discuss.”

A majority of the committee members think that FOIA would benefit from more oversight and accountability, whether through existing entities such as the Department of Justice’s Office of Information Policy or the Office of Government Information Services, the FOIA Ombudsman, or through an entity outside the executive branch.

Committee member Nate Jones, FOIA Coordinator at the non-governmental National Security Archive, suggested reviewing FOIA lawsuits to determine whether there are cases that need not be litigated. He also suggested a pre-litigation program within agencies to have closer scrutiny of whether the Government will defend an agency in litigation.

The committee agreed to look at what oversight now exists; identify gaps in oversight as well as best practices in state, Federal and international oversight of freedom of information programs; and how compliance audits might contribute to robust oversight.

The committee also set proactive disclosure as a priority and agreed to look at existing requirements regarding proactive disclosure, what the barriers are to proactive disclosure and what agencies have excellent proactive disclosure.  The committee also discussed having requesters help set priorities for proactive disclosures.

“To make proactive disclosure part of the culture, you need more than the FOIA people at the table,” said Karen Finnegan, Chief of the Programs and Policies Division at the Department of State, which develops FOIA policies and procedures, handles FOIA litigation and manages the Department’s special document productions. Information technology experts, open government managers and others should also be involved.

Several committee members noted that Section 508 compliance, which makes government records posted online accessible to individuals with disabilities, is an unintended obstacle for agencies striving to make proactive disclosures. Another idea: identifying common sets of records that all agencies can post.

The committee also set fees and fee waivers as a priority. The committee discussed how and whether to reform FOIA fees; whether to revise or eliminate fees for non-commercial or all requesters; and how to reduce “fee animosity” between requesters and agencies. Ginger McCall, Director of the Open Government Program at the Electronic Privacy Information Center (EPIC), and others suggested having bright lines with regard to fees and certain categories of requesters.

Committee members paired up (one government member and one non-government member) to lead each of the three projects.

Three other ideas that came up during brainstorming are already being addressed as part of the NAP, including a common core FOIA regulation, a consolidated government-wide FOIA portal, and training.

Other ideas the committee considered include (in no particular order):

• Changing the 20-working-day  response time to 20-working days  for simple requests and 60-working days for complex requests
• Aiming to fulfill every request within one year
• Adding a role for FOIA requesters in legislation
• Studying FOIA backlogs and coming up with a way to reduce them
• Cross-training between Federal FOIA professionals and requesters
• Training all agency employees that FOIA is everyone’s responsibility
• Harnessing technology to improve the FOIA process
• Fostering communications between agencies and requesters
• Developing a way to access immigration records outside of the FOIA process
• Building a bridge between FOIA and records management
• Requiring standard performance criteria for all Federal FOIA professionals
• Increasing discretionary release
• Improving the FOIA referral process
• Revising the statute so it is written in plain writing that everyone can understand
• Reducing and clarifying Exemption 3 statutes, non-FOIA statutes that exempt certain categories of information
• Establishing a triage system so records are not destroyed while agencies are processing FOIA requests
• Standardizing FOIA websites
• Improving the ability of public to access documents by metadata tagging
• Establishing an Exemption 5 balancing test

Have ideas? We’d love to hear from you!