We’re pleased to release our second assessment of an agency FOIA program: the National Archives and Records Administration’s (NARA) Special Access and FOIA unit. Regular readers will recall that we launched our agency assessment program last year to help us better fulfill our statutory mandate to review agency FOIA policies, procedures and compliance. (5 U.S.C. §§ 552 (h)(2)(A) and (B).)
As the name of the office implies, Special Access and FOIA operates slightly differently than other FOIA offices. One of the biggest differences between Special Access and FOIA and other FOIA shops is that Special Access and FOIA primarily processes records that were created by another agency. Once an agency no longer has a business need for permanently historically valuable records, it transfers legal custody of the records to NARA. (The term of art for this change in custody is accessioned.) More than 90 percent of archival records are available without a FOIA request. The office processes requests for accessioned records located at NARA’s College Park, MD, and Washington, DC, facilities. Because the records are archival, Special Access and FOIA uses a different fee system (which is set by law). The office also does not use Exemption 5, which covers several well-known legal privileges, including the deliberative process, attorney-work product, and attorney-client privileges, to withhold information.
Like our first assessment, this 12-page report includes our observations, including best practices, and our recommendations. At the end is an at-a-glance summary of our recommendations, which are intended to help improve the FOIA process for the agency and for requesters.
To prepare this report, our review team evaluated NARA’s regulations and website against the requirements of the statute, and our best practices. We also reviewed the agency’s Annual FOIA and Chief FOIA Officer reports and evaluations by other groups (from both in and outside of the government), and looked at litigation against the agency to identify any trends. (We found none.) This research was supplemented by a survey of agency FOIA professionals and in-depth interview with the office’s head, Martha Murphy. We also reviewed a sample of case files to see how the office is carrying out the law in practice.
It’s important to note that the report doesn’t touch on every facet of FOIA. That doesn’t mean we didn’t look at how the agency measures up to every statutory requirement. We did, and in an effort to create a readable report that the agency will use, we wrote only about the best practices we observed and about our recommendations for improvements. We hope that the at-a-glance summary of our recommendations will help agency FOIA managers as they plan for future improvements.
The OGIS Review Team has scheduled six other agency reviews for this fiscal year. Next up, we will focus on components of the Department of Homeland Security, starting with the Federal Emergency Management Agency (FEMA). The other components we’ll assess are Coast Guard , Transportation Security Administration , Secret Service , US Immigration and Customs Enforcement, and Customs and Border Protection.