Final Report and Recommendations of the 2016-2018 FOIA Advisory Committee Released

On April 17, 2018 the 2016-2018 Term of the FOIA Advisory Committee wrapped up its work by approving its Final Report and Recommendations.  The report is the culmination of two years of work by individuals with particular FOIA expertise inside and outside of government who were able to develop consensus solutions to some of the greatest challenges in the administration of FOIA.

As our regular blog readers know, the Committee focused on three areas during its 2016-2018 term: proactive disclosures and accessibility, FOIA searches, and the efficient use of agency FOIA resources. The Committee’s Final Report and Recommendations includes seven unanimously supported recommendations to the Archivist for actions to improve the implementation of FOIA, addressing search technology, FOIA and accessibility, and FOIA performance standards.

The report also includes a number of best practices that the Committee recommends the Archivist direct OGIS to publish and promote as part of our statutory responsibility to identify procedures and methods to improve compliance.

Briefly, the Committee’s recommendations and best practices that are discussed in this report include:

• Improving proactive disclosures. The Committee recommended that the Archivist direct OGIS to publish as a best practice that agencies proactively post specific categories of records, including calendars of top agency officials, unclassified reports provided to Congress, FOIA logs, and other categories identified in the Final Report. The best practice also offers methods to ensure FOIA logs are most useful, and provides considerations for agencies when identifying additional areas for proactive disclosure.
• Balancing proactive disclosure and accessibility obligations. The Committee recommended that the Archivist direct OGIS to publish a best practice encouraging agencies to avoid the removal of documents already posted on agency websites that are not currently compliant with Section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794d. Instead, the best practice recommended by the Committee is to remediate such documents. When agencies are concerned about the practicality of remediation, the best practice is for an agency to conduct an “undue burden” analysis by balancing Section 508 with their FOIA statutory obligations — the Rehabilitation Act allows agencies to release electronic documents that are not Section 508-compliant if rendering them compliant would “impose an undue burden” on the agency.
• Improving FOIA Searches. The Committee recommended that the Archivist address the lack of public information about current methods and technologies agencies use to search for responsive records by: (1) requesting that the U.S. Department of Justice’s Office of Information Policy affirmatively collect this type of information in next year’s Chief FOIA Officer (CFO) Reports, and (2) recommending that the CFO Council work with the Chief Information Officers Council to explore the technological issues related to searches and to promote best practices. The Committee further recommended that the Archivist suggest a modification to the Federal Acquisition Regulation to ensure that all agencies consider FOIA obligations when acquiring electronic records management software and that the Archivist also direct OGIS to examine and report on the use of appropriate FOIA performance standards for federal employees.
• Making efficient use of agency resources. The Committee recommended that the Archivist direct OGIS to publish as best practices a number of identified strategies to ensure agencies maximize the use of available resources. These best practices address several issues, including staffing, career incentives, workflow, accountability, and technology.

We were pleased to be joined by four Committee members during last week’s Second Annual Open Meeting to discuss the Final Report and Recommendations. During the panel discussion (the panel discussion begins around the 35:50 mark of this video on NARA’s YouTube Channel), Committee members talked about how the Committee developed its recommendations, and their views on what recommendations and best practices might be the easiest and the hardest to adopt.

Are you interested in being a part of the FOIA Advisory Committee? We are currently soliciting nominations for the 2018-2020 Term. To make a nomination – or a self-nomination – please submit the following materials to foia-advisory-committee@nara.gov by June 1, 2018:

• Your name, title, and relevant contact information (including phone, fax, and email address);
• If nominating someone else, the nominee’s name, title, and relevant contact information, and the Committee position for which you are submitting the nominee;
• A short biographical paragraph about the nominee (fewer than 250 words), summarizing their/your resume´ or otherwise highlighting the contributions they/you would bring to the Committee; and
• Your/the nominee’s resume´ or curriculum vitae.