OGIS’s Acting Director, Nikki Gramian, took a turn in the big chair before the Senate Judiciary Committee on May 6 to update the panel on OGIS’s activities over the last year. The hearing also included testimony from Director of the Department of Justice Office of Information Policy Melanie Pustay; State Department Chief FOIA Officer Joyce Barr; Associated Press’ General Counsel Karen Kaiser; and the Director of the National Security Archive at George Washington University Tom Blanton.
Ms. Gramian’s testimony covered many of the topics we’ve blogged about over the past year, including the establishment of the federal FOIA Advisory Committee, and the launch of our new agency assessment program. She also took the opportunity to talk about the importance of agencies having an appropriate routine use in place for both our mediation and review work.
For those of you who are not familiar with “an appropriate routine use,” we essentially mean that the agency has notified the public that it might share, as a matter of routine, information protected by the Privacy Act with another agency in the course of business. An agency notifies the public that it will share certain types of information by updating what is known as its Privacy Act Systems of Records Notice, or—to throw out the commonly used government acronym—SORN. Since FOIA case files include personally identifiable information, in order for an agency to talk about a FOIA case with OGIS, it must have updated its SORN to note that FOIA case files will be shared with OGIS. If an agency has not updated its SORN accordingly, we obtain consent from the requester to allow us to talk to the agency about the case.
Here’s how Ms. Gramian explained how the lack of a routine use creates logistical challenges for OGISs’ work:
During an agency assessment, our review team will evaluate a sample of agency FOIA case files against FOIA’s requirements and selected DOJ and OGIS best practices. If the agency has updated its SORNs to include a routine use for the disclosure of records to OGIS, the agency is permitted to share case files without taking additional steps. However, the absence of an appropriate routine use requires additional administrative steps OGIS and the agency must take to share the information. For example, OGIS or the agency would have to obtain the consent of the individual to whom the records pertain for each of the case files OGIS would like to review; alternatively, the agency must conduct a page-by-page and line-by-line review of the case files to insure that only the information required to be released pursuant to the FOIA is given to OGIS.
In addition, in the course of our mediation work, when an appropriate routine use is not available, our practice is to seek the individual’s consent to allow OGIS and the agency to share information. However, when an agency is seeking OGIS’s assistance with a dispute, the agency must obtain consent from the requester before contacting us. This can be an obstacle, particularly in situations in which an agency seeks our assistance with a requester with whom communications have broken down.
As we’ve noted before, seven of 15 Cabinet-level departments and six agencies have OGIS language in their Privacy Act SORNS.
To learn more about the hearing, check out the saved webcast or download all of the witness’ testimony and senators’ opening statements here: http://www.judiciary.senate.gov/meetings/ensuring-an-informed-citizenry-examining-the-administrations-efforts-to-improve-open-government. You can also download all of OGIS’s testimony before Congress here: https://ogis.archives.gov/about-ogis/congressional-testimony.htm.
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