We’re pleased to announce completion of our first assessment of an agency FOIA program, officially launching the expansion of our review program and helping us better fulfill our statutory mandate to review agency FOIA policies, procedures and compliance. 5 U.S.C. §§ 552 (h)(2)(A) and (B).
The National Archives and Records Administration’s own Office of General Counsel agreed to be the subject of our first assessment. The Office’s FOIA team, which processes about 300 FOIA requests a year for operational records created or received in carrying out the Archives’ mission and responsibility, spent hours answering our questions, talking with us about how it administers FOIA, and opening its FOIA files for us to examine. The result is a 10-page report documenting our observations, including best practices, and our recommendations. At the end is an at-a-glance summary of our recommendations that we hope provides a check-list, of sorts, of steps to be taken to ensure FOIA works better for all—agency and requester.
As with our mediation services, we conduct our assessments of agency FOIA programs as an advocate for the FOIA process with a focus on impartiality and fairness. We’re an ombudsman’s office and as such, advocate for neither the agency nor the requester, but for the FOIA process to work as intended.
We began noodling the framework for OGIS assessments in 2012 when we met with our Archives colleagues at the Information Security Oversight Office, which evaluates the effectiveness of the security classification programs established by Government and industry to protect national security information. We left that meeting with a clear sense that the FOIA statute itself should guide us.
A line-by-line page-by-page review of the statute (a process familiar to thousands of FOIA professionals!) resulted in an outline for our assessment program. We also consulted other FOIA resources, including, but not limited to, the Guide to the Freedom of Information Act and guidance published by the Department of Justice’s Office of Information Policy; the Office of Management and Budget Guidelines for Fees; and OGIS’s observations and best practices that we developed over the last five years.
Armed with what we call the elements of an effective FOIA program, we created an assessment methodology that includes an online survey for FOIA professionals. The questions are designed to provide insight into a FOIA program without duplicating questions already asked in Annual FOIA and Chief FOIA Officer reports.
We assess the survey results along with the agency’s FOIA regulation, website, training materials and other written materials. We also review the agency’s FOIA litigation and look at resources such as Annual FOIA and Chief FOIA Officer reports and reports from open government groups. Finally, we visit the FOIA program to interview agency FOIA professionals and review FOIA request files before writing a final report. The report is not designed to be a “gotcha” document or to provide a grade, but rather to provide a thoughtful analysis of what works and what doesn’t along with recommendations for improvement.
Next, we’ll assess the Archives’ Special Access and FOIA Program, which processes FOIA requests for archival federal records in the Washington, D.C., area. In 2015, we plan to assess FOIA programs at the Department of Education and at components of the Department of Homeland Security.
In December, two new staff members will join the OGIS team allowing us to regularly assess FOIA programs. As we ramp up our agency assessments, we’ll continue the review work that we already do, including reviewing and commenting on proposed agency FOIA regulations; reviewing and suggesting improvements to agency FOIA materials; and working with agencies when we observe policies and procedures that appear to be inconsistent with FOIA law or policy.
We’d love to hear your thoughts about our nascent agency assessment program.