Gearing Up for the 2016-2018 Term of the Federal FOIA Advisory Committee

Freedom of Information Act (FOIA) Advisory Committee

Members of the first term of the FOIA Advisory Committee with David S. Ferriero (center), Archivist of the United States. in Washington, DC on April 19, 2016. NARA photo by Jeffrey Reed.

If you’re a frequent visitor to our website (and we hope you are), you might have noticed we’ve added a section for news and materials related to the 2016-2018 term of the FOIA Advisory Committee. The National Archives and Records Administration created the Committee in 2014 to bring together requesters and agency Freedom of Information Act (FOIA) professionals to work to improve the administration of FOIA. OGIS provides leadership and administrative support to the Committee.

The first term of the FOIA Advisory Committee ended on a high note: Committee members presented Archivist of the United States David S. Ferriero with a recommendation to improve the FOIA process. This recommendation—that the Office of Management and Budget update its 1987 fee guidance to reduce confusion and and improve consistency in how the law is interpreted by agencies—won   unanimous support from the Committee on April 19, 2016.

On May 20, 2016, the Archivist renewed the Committee’s charter in recognition of Its unique role in bringing together agencies and requesters to consider ways to modernize the administration of FOIA. We are particularly excited about this term of the Committee because it presents an opportunity for the Committee members to look more broadly at the challenges that agency FOIA programs are expected to face with an ever increasing volume of electronic records.

In the coming weeks, we will update the FOIA Advisory Committee’s new web page to include information about the individuals the Archivist appointed to the Committee, and the Committee’s meeting schedule. If you have any comments for the Committee to consider, please email them to foia-advisory-committee@nara.gov.

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OGIS Seeks Input on Immigration and Customs Enforcement FOIA Program

OGIS wants to hear about your FOIA experience with Immigration and Customs Enforcement! (NARA Identification Number 1633445)

OGIS wants to hear about your FOIA experience with Immigration and Customs Enforcement! (NARA Identification Number 1633445)

Have you made a Freedom of Information Act (FOIA) request to Immigration and Customs Enforcement (ICE) at the Department of Homeland Security (DHS)? Our Compliance Team wants to hear about your experience.

Our compliance review process includes several methods to better understand how an agency FOIA program operates and what kind of challenges or opportunities it faces. In addition to interviewing the FOIA program’s management and surveying the program’s FOIA staff, we also review the requests we have received to mediate FOIA disputes with the agency, review data from Annual FOIA Reports and FOIA litigation against the agency to identify trends, and review a statistically significant sample of the agency’s FOIA case files from the previous fiscal year.  We analyze the information to evaluate the agency’s compliance with the statute, highlight best practices, and make recommendations to improve the FOIA program (you can see all of our published assessments and recommendations here). We decided to expand our reach to FOIA requesters as part of our compliance review process because we started hearing from requesters after our assessments were complete.

As the Federal FOIA Ombudsman, we have always believed good customer service is a critical component of a successful FOIA program. In order to better understand the kind of customer service the agency provides, we think it is important to hear from the agency’s customers. If you have filed a FOIA request with ICE and would like to tell us about your experience, please email ogis@nara.gov.

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More Chances to Wish FOIA A Happy Birthday!

If you missed seeing the original Freedom of Information Act (FOIA) signed by President Lyndon Johnson that was on display during our Sunshine Week Event, the National Archives is giving you another opportunity to wish the law a happy 50th birthday in person!

Senator Patrick Leahy (D-VT) and David S. Ferriero (right), Archivist of the United States, celebrate the 50th anniversary of the Freedom of Information Act at the 2016 Sunshine Week program, a national initiative to promote dialogue about the importance of open government and freedom of information, at the National Archives in Washington, DC, on March 14, 2016. NARA photo by Jeffrey Reed.

Senator Patrick Leahy (D-VT) and David S. Ferriero (right), Archivist of the United States, celebrate the 50th anniversary of the Freedom of Information Act at the 2016 Sunshine Week program, a national initiative to promote dialogue about the importance of open government and freedom of information, at the National Archives in Washington, DC, on March 14, 2016. NARA photo by Jeffrey Reed.

We are happy to announce that between June 15 and September 14, 2016, the FOIA will be on display in the National Archives’ permanent exhibition “Records of Rights” in the David M. Rubenstein Gallery. Members of the public can drop by during the Museum’s operating hours to view the exhibit for free.

Members of the press will have a special opportunity to photograph or videotape the document before it is placed on display. This informal press-only event will be on Monday June 13 in the National Archives’ Conservation Lab. See the press release for additional information.

FOIA has changed a great deal over the past 50 years. In addition to the major updates Congress has given the law about once every 10 years, Court rulings—including more than 20 Supreme Court decisions—have continually affected how agencies administer FOIA.

As most of you likely know, OGIS is one of the newer features of FOIA: in October 2014, the Newseum hosted an event marking the 5th anniversary of our office. As OGIS’s former Director James Holzer pointed out during his address at the 2016 National Freedom of Information Day Celebration, OGIS is in its best position yet to act as a change agent in the administration of FOIA; we have helped mediate FOIA disputes between Federal agencies and requesters in all 50 states and in 22 foreign countries, and we have a robust FOIA compliance program in place that provides tailored recommendations on how to improve an agency’s FOIA program.

As we honor FOIA’s 50th birthday, we hope you will also all join us in looking forward to its next 50 years!

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June 16 Requester Roundtable on FOIA Websites

We hope you can join us on June 16 to share your thoughts about improving agenc

We hope you can join us on June 16 to share your thoughts about improving agency FOIA Websites (NARA Identifier 23869179)

Have you ever spent far too long searching for something on an agency’s Freedom of Information Act (FOIA) website or thought to yourself, “there are certain types of information that every agency should include on its FOIA website”? If so, mark your calendars and reserve your seat for the June 16, 2016 Requester Roundtable on FOIA Websites. We are hosting the discussion with the Office of Information Policy (OIP) at the Department of Justice.

Improving agency FOIA websites is one of several FOIA modernization commitments made by the U.S. Government as part of the Third United States Open Government National Action Plan. The goal of the upcoming meeting is to gather feedback from members of the public and agency personnel about best practices for agency FOIA websites. The feedback will help us as we work with OIP to develop guidance and create best practices for agency FOIA websites.

Space for this meeting is limited, so registration is required. To register to attend, please email your name and phone number to OIP’s Training Officer at DOJ.OIP.FOIA@usdoj.gov with the subject line “June Requester Roundtable.”

Posted in Best practices, OGIS events, Requester Roundtable | 1 Comment

An Easy Way to Help Us Resolve FOIA Disputes

In order to assist some FOIA requesters, we need their signature. (NARA Identifier 7666252)

In order to assist some FOIA requesters, we need their signature. (NARA Identifier 7666252)

We recently posted a list of agencies that have taken a step that makes it easier for us to resolve Freedom of Information Act (FOIA) disputes. These agencies have a Privacy Act “routine use” that allows the agency to share with OGIS information about FOIA request and appeal files.

Agencies store FOIA case files in systems of records that are protected by the Privacy Act of 1974, which usually means that the agency needs written consent from the requester before it can discuss or share information in FOIA files with another government agency such as OGIS. (FOIA requesters who have asked for our assistance might be familiar with the privacy consent statement that we ask them to sign before we open a case). However, if a government agency (such as OGIS) routinely needs access to another agency’s files, the agency that controls the records can include a “routine use” that allows OGIS access to those files in its FOIA/Privacy Act System of Records.

Several years ago, OGIS worked with the Department of Justice to develop a model routine use that agencies can use for this purpose:

To the National Archives and Records Administration, Office of Government Information Services (OGIS), to the extent necessary to fulfill its responsibilities in 5 U.S.C. § 552(h), to review administrative agency policies, procedures and compliance with the Freedom of Information Act (FOIA), and to facilitate OGIS’ offering of mediation services to resolve disputes between persons making FOIA requests and administrative agencies.

Twelve of the 15 Cabinet-level Departments and eight other agencies have amended their FOIA/ Privacy Act System of Records so that it includes the routine use mentioned above, allowing OGIS and the agencies to share information from FOIA case files. In the past two years, we have contacted many of those agencies that have not yet amended their System of Records to include a routine use for OGIS to ask that they do so, and in the coming weeks, we will contact them again. You can see all of the agencies we have contacted thus far, the dates of contact, and the response—if any—from each agency here.

While contacting these agencies is a significant effort for our small staff, we have found that the inclusion of a routine use for OGIS makes it significantly easier for us to do our work. We hope that these lists provide a little more insight into how we work, and the steps we are taking to make sure that we can assist the FOIA community—both requesters and agencies.

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Planting the Seeds of Dispute Resolution

We are working to help sow the seeds of dispute resolution throughout FOIA programs. (NARA Identifier 195586)

We are working to help sow the seeds of dispute resolution throughout FOIA programs. (NARA Identifier 195586)

Do you or your colleagues need help sharpening your communications skills? Would you like to hear tips for avoiding or narrowing disputes with Freedom of Information Act (FOIA) requesters? OGIS is here to help!

As you might know, about twice each fiscal year we plan day-long dispute resolution skills training sessions for agency FOIA professionals. Since we first offered the training in March 2010, we have held the program 27 times, serving roughly 650 FOIA professionals from about 60 Departments and agencies, including all Cabinet-level agencies. These sessions regularly receive the highest marks from participants and fill up quickly: our last training session filled up two days after we opened registration. Look for the next session this fall by following this blog or following @FOIA_Ombuds on Twitter.

In addition to our regular training, we are also happy to work with agencies to provide dispute resolution skills training that is tailored to their needs. Carrie McGuire, our Mediation Team Lead, recently provided a session on dispute resolutions skills at the Department of Labor’s FOIA conference, and led a more in-depth session for FOIA staff at the National Labor Relations Board.

If you want to know more about our training program, please let us know.

Posted in Administative Dispute Resolution Act, Alternative dispute resolution, OGIS events, Training | 2 Comments

Farewell from Director Holzer

We hope you join us in saying goodbye and best of luck to Director Holzer. (NARA Identifier 6671058)

During my relatively short tenure as the Director of OGIS, I have endeavored to strengthen and mature OGIS’s mediation and compliance programs. Miriam Nisbet and all of the OGIS staff are to be commended for doing the very hard work of setting up and running a new government program. When I first walked through the doors of OGIS on August 10, 2015, my immediate priorities were to focus on program management, outreach, education and training, and staff development, while also solving problems and providing strong leadership on urgent and emerging issues. I focused on these areas because I know they are critical for the maturity and long-term success of the office, and have helped set a strong foundation for the coming years.

Together with the OGIS staff, we developed, drafted, and finalized a Fiscal Year 2016 – 2018 strategic initiative that connects OGIS’s work with the National Archives’ strategic goals and lays out our vision for the next two years.  The FY 2016 – FY 2018 initiative clarifies our role as the FOIA Ombudsman, established goals for OGIS’s mediation and compliance programs, and includes a push to sharpen the skills that members of the staff need to successfully mediate disputes and assess agency compliance with the FOIA.

We also strengthened the office’s operation and fulfilled a recommendation by the GAO by developing performance measures that allow NARA leadership to better measure the efficiency and effectiveness of our work.  In addition, I led the development of an OGIS program-wide Standard Operating Procedures (SOP). The SOP identifies roles and responsibilities of staff, administrative functions, general workflow, and how we execute our mediation and compliance functions.

OGIS recently completed drafting our proposed regulations which set out the implementing policies and procedures by which OGIS carries out its statutory mission, and explains OGIS’s statutory role in the FOIA process. The proposed regulations are currently in the interagency review process. The public will have an opportunity to comment when the draft regulation is published in the Federal Register. At that time, OGIS will post an update with additional information on how to submit comments on our website.

I also spearheaded the creation of an agency FOIA compliance self-assessment program to help the OGIS Compliance Team spot government-wide trends. Eighty percent of the 61 agencies OGIS invited to participate in the survey responded.

As the Chairman of the Federal FOIA Advisory Committee, the committee issued its final report and approved its first recommendation to the Archivist of the United States to improve the FOIA process: that the Office of Management and Budget update its 1987 fee guidelines for FOIA.

I also continued to strengthen relationships with key stakeholders in OGIS programs. I obtained buy-in from the Senior Officials regarding the importance of agencies updating their FOIA/PA SORNs to allow OGIS access to their FOIA files. Seventeen Cabinet and Non-Cabinet Departments/Agencies now have a routine use with OGIS language in their FOIA SORNs.

OGIS also organized a half-day Sunshine Week event marking the 50th anniversary of the FOIA and exploring the possibilities and challenges of using technology to open the government. Senator Patrick Leahy (D-VT) delivered the event’s keynote address.

During this time, I have overseen the publication of four Agency Compliance reports making nearly 60 recommendations on ways agencies may improve their administration of FOIA. These reports include recommendations to Customs and Border Protection, Transportation Security Administration, United States Coast Guard, and the Federal Emergency Management Agency. In addition, our office published our annual report and a report on the use of “still interested letters” by agencies.

We all know that change does not occur quickly, but the foundation that has been laid over these last nine months will provide great benefits over time. I am proud of the progress we made, but there is more work ahead. I know that this office will continue working hard every day, dedicated to delivering better service to the public.

I want to thank Archivist of the United States David S. Ferriero and Deputy Archivist of the United States Debra Steidel Wall for their unwavering support for OGIS’s mission, as well as Chief Operating Officer William Bosanko and Director of Agency Services Jay Trainer for their partnership in pursuing our shared goal of making access happen and connecting with our customers. I appreciate the opportunity to have led OGIS and their confidence in me.

As many of you know, I spent six years at the Department of Homeland Security (DHS) FOIA Office, serving most recently as the Senior Director of FOIA Operations. During that time I oversaw several efforts to control DHS’s backlog, improve communication with requesters, and push forward innovative uses of technology to improve DHS’s FOIA performance. I was happy to see many of these efforts begin to pay off this year when DHS reported a 66 percent reduction in its Fiscal Year 2015 Annual FOIA Report. But, I know there is still room for a lot of additional improvements. Though, I am sure that there were many excellent candidates who could have continued to implement changes to improve the DHS FOIA program, I could not pass up the opportunity to continue the job myself as the Deputy Chief FOIA Officer. I look forward to continuing to work with you all in that capacity.

Posted in About OGIS, Message from the Director | 2 Comments

OGIS Recommendations Regarding Agency Use of Still Interested Letters

Regularly communicating with requesters regarding requests can alleviate the need to use still interested letters. (NARA Identifier 192672)

Regularly communicating with requesters regarding requests can alleviate the need to use still interested letters. (NARA Identifier 192672)

As we have discussed the last few weeks, still interested letters are a source of great frustration for many Freedom of Information Act (FOIA) requesters and can give requesters the appearance that an agency’s FOIA process does not work.

For those of you new to the issue, still interested letters refer to correspondence that an agency sends to requesters asking if they are still interested in the requested records. Typically, this correspondence includes a date by which the agency expects to hear back from the requester; hearing nothing, the agency closes the request.

Our review of the use of still interested letters by agencies (see Part 1 and Part 2 of our assessment) revealed two key findings:

  • while available data suggests that few requests are closed using still interested letters, the data does not capture key elements of these letters that frustrate requesters, including the delay in an agency’s response to the request prior to sending a still interested letter, the amount of time the requester is given to respond, or how many times a requester is sent still interested letters before the request is processed; and
  • there is no guidance regarding how agencies should report requests closed using still interested letters, and agencies report these administrative closures in a variety of ways.

OGIS issued recommendations to address these findings in Part 3 of our report. The recommendations include steps that agencies, OGIS, and the Office of Information Policy (OIP) at the Department of Justice can take to reduce requester frustration with these letters, and make it easier for FOIA managers, Congress, and the public to understand how often these letters are used to close FOIA requests. Among our recommendations is that agencies regularly communicate with requesters about the status of their requests—thus alleviating the need for the use of still interested letters. We also recommend better reporting on the use of still interested letters.

Although we do not expect to issue any further reports on the use of still interested letters, we will continue to monitor how agencies use these letters. As discussed in our recommendations, OGIS will continue evaluating the use of still interested letters in our agency FOIA compliance reports and, when warranted, bring to the attention of agency Chief FOIA Officers any instances of non-compliance with OIP guidance on still interested letters.

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Further Findings on the Use of “Still Interested” Letters

As part of our compliance review of the use of still interested letters, we took a look at FOIA programs'  fiscal year 2014 use of  these letters. (NARA Identifier 6426854)

As part of our compliance review of the use of still interested letters, we took a look at FOIA programs’ fiscal year 2014 use of these letters. (NARA Identifier 6426854)

As we reported last week, data on the historical use of “still interested” letters cannot capture the full effect that the letters have on FOIA requesters but show that agencies close very few requests using these letters. For Part 2 of our review of still interested letters, we followed up with seven FOIA programs to learn more about how these letters were used.

Still interested correspondence is a letter or an email an agency sends to requesters requiring them to affirm that they remain interested in the requested records. Typically, the correspondence informs requesters that the request will be closed unless they respond by a certain date.

As noted in Part 1 of our assessment, one of the difficulties of using available data to evaluate use of still interested letters is that there is no guidance on how agencies should report requests closed using still interested letters. While some agencies clearly reported using still interested letters, others described administrative closures such as “no response from requester” or “unable to locate requester” that might be related to a still interested letter. We also noted that agencies could possibly have reported requests closed using still interested letters as “withdrawn.”

Part 2 of our assessment used data from agencies’ Fiscal Year (FY) 2014 Annual FOIA Reports to identify the FOIA programs in which the actual or apparent use of still interested letters might have the greatest effect on requesters. To ensure that we captured all requests that might have been closed using still interested letters, we reviewed data on all administrative closures described in a way that might be connected to still interested letters plus all requests reported as withdrawn. At the seven FOIA programs we identified, we asked a series of questions about their use of still interested letters, and how they report them.

Similar to our results from Part 1, we found that despite the fact that we targeted FOIA programs whose use of still interested letters might have the greatest effect on requesters and that we included requests that were likely not closed using still interested letters in our data, the FOIA programs we reviewed closed relatively few requests possibly using these letters. Of the 46,019 requests the FOIA programs we reviewed processed in FY 2014, about 5.5 percent (2,535 requests) were closed using a method that might be related to a still interested letter.

Despite the relatively small number of requests closed, the letters frustrate requesters who receive them and can give the appearance that an agency’s FOIA process does not work.

We also found that despite our observed inconsistencies in how federal agencies used these letters, all of the FOIA programs we interviewed informed us that their current use of the letters is in line with guidance issued by the Office of Information Policy (OIP) at the Department of Justice (DOJ). We also note however, that the FOIA programs reported variations in how requests closed using still interested letters are reported and that the programs did not have written policies regarding how the letters should be used.

We will issue recommendations regarding our observations on the use of still interested letters in a subsequent report.

Posted in Review | 1 Comment

A Deep Dive into the Use of “Still Interested” Letters

OGIS took a deep dive into Annual FOIA Reports to learn more about the use of still interested letters.  (NARA Identifier 6432983)

OGIS took a deep dive into Annual FOIA Reports to learn more about the use of still interested letters. (NARA Identifier 6432983)

Since late last summer, the OGIS Compliance Team has been taking a close look at a controversial practice that some agencies use to close Freedom of Information Act (FOIA) requests. The term “still interested letter” is shorthand for correspondence an agency sends to requesters requiring them to affirm that they remain interested in the requested records. Typically, this type of correspondence informs requesters that the request will be closed unless they respond by a certain deadline.

Today we release part one of our analysis of the use of still interested letters by agencies: a look at historical trends in the use of these letters by the 15 Cabinet-level agencies. We analyzed data from FOIA Annual Reports to the Attorney General of the United States for 17 fiscal years (FY 1998 – FY 2014), including the number of requests the agency reported closing using still interested letters, the number of requests processed, and the number of requests pending closure.

One over-arching lesson we learned is that it is hard to measure the effect still interested letters have on FOIA requesters. This report shows that the number of FOIA requests Cabinet-level agencies reported closing using still interested letters accounts for less than 1 percent of the number of requests processed in all but one of the 17 fiscal years we reviewed. However, the report also discussed the difficulty in getting a true picture of how often these letters are used because there is no guidance or standard for reporting requests closed using still interested letters.

The report also recognizes that available data does not capture requester frustration about the use of still interested letters. Ironically, the requesters most likely to be annoyed by correspondence of this type—those who wish for their requests to remain open, and respond by the agency’s deadline—will  never show up in data about the number of requests closed using still interested letters. As the report points out, available data does not show how long the agency gives requesters to respond or how many times a requester is sent a still interested letter before records are finally processed.

Despite the limitations of the data, the report draws some interesting conclusions about the use of these letters. In addition to shedding light onto the number of requests that agencies report as closing using still interested letters, we were also able to test the hypothesis that agencies use still interested letters to reduce their backlogs. Our research suggests that using still interested letters to reduce a backlog is an ineffective strategy: we found only three instances in which the use of still interested letters resulted in a greater than 3 percent reduction in pending requests at the end of the fiscal year.

OGIS’s Compliance Team considers the use of still interested letters to merit further study. The OGIS Compliance Team continues to assess an agency’s use of these letters as part of our agency assessments. We will issue further reports and recommendations on still interested letters as practicable.

Posted in Review | 6 Comments