Outbreak of Interesting FOIA Discussions Reported at CDC Atlanta HQ

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A U.S. Army nurse prepares a hypodermic syringe for an injection. (NARA Identifier 6386407)

On Wednesday, March 28, OGIS’s Mediation Team Lead Carrie McGuire facilitated a FOIA forum at the Centers for Disease Control and Prevention (CDC) in Atlanta, Georgia. This special event brought together FOIA processors, FOIA coordinators, appeals staff and others from across the federal government to discuss FOIA issues of special interest.

For years, OGIS has promoted the importance of agency leadership showing support for the FOIA program. CDC’s Chief Operating Officer, Sherri Berger, demonstrated such support with her opening remarks, which noted CDC’s achievements in reducing the agency’s FOIA backlog. The program continued with a keynote address by Associated Press reporter Mike Stobbe, who traced FOIA’s philosophical roots to the reign of T’sai-Tsung (626 to 649), who created an imperial ombudsman office and invited those with a government grievance to bang a drum on the palace steps. Mike went on to describe how the records he received through FOIA requests provided the basis for his book, Surgeon General’s Warning: How Politics Crippled the Nation’s Doctor (University of California Press, 2014).

Kenya Ford, Senior Attorney with the CDC’s Agency for Toxic Substances and Disease Registry Branch, then presented information about FOIA Exemption 6 and, in particular, the differences between Exemption 6 and the Privacy Act. The forum closed with remarks from Jennie Kneedler, Senior Trial Counsel at the Federal Programs Branch in the Civil Division of the Department of Justice. Ms. Kneedler shared interesting tidbits gleaned from her experience as an attorney who has represented federal agencies in FOIA litigation, such as the importance of documenting scope and details of searches, including use of specific search terms.

Thank you to CDC’s FOIA leadership for making the FOIA forum possible – it was a great day full of interesting presentations and thoughtful questions.

Posted in Team approach, Training | Leave a comment

OGIS Fiscal Year 2017 Report Now Available

We realize that it was a very busy Sunshine Week, so we understand if you missed the fact that in addition to testifying on the Hill and hosting and participating in great events, we also released our Fiscal Year (FY) 2017 Annual Report. This year’s report chronicles our first full year since the passage of the FOIA Improvement Act of 2016, which highlighted OGIS’s crucial role in improving compliance with the statute, and improved our ability to share our frank observations about methods to improve the FOIA process.

Here are a just a few of the report highlights:

  • We experienced a 160 percent overall increase in our caseload and closed more than double the number of cases closed in FY 2017 compared to FY 2016.
  • Our compliance assessment reports continue to show the value of investing in technology to improve the FOIA process; strong management that ensures staff has a clear understanding of their roles and responsibilities, and the FOIA program has sufficient leadership support; and that good communication helps ensure a smooth FOIA process—and helps to prevent disputes that may otherwise lead to litigation.
  • We redesigned our website to make it easier to navigate and mobile-friendly.
  • We held our first Annual Open Meeting, and hosted a meeting of the Chief FOIA Officers Council to discuss the importance of clear communication with requesters and ways to improve customer service.
  • We improved our understanding of the relationship between FOIA and Records Management offices, and supplemented our understanding of how agencies across the government are implementing FOIA by including targeted FOIA questions in the Records Management Self-Assessment.

If you are interested in learning more about our year at OGIS – including how many proposed updates to FOIA regulations we reviewed, agency responses to our compliance assessment reports, and more – we encourage you to download and read the report!

Posted in About OGIS, OGIS's Reports | Leave a comment

Tips for Avoiding FOIA Lawsuits

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Just a few brief tips for keeping FOIA lawsuits out of court. (NARA Identifier 6010581)

Last week our mediation team facilitator, Christa Lemelin, gave a five minute lightning talk at the Department of Commerce Sunshine Week celebration about common mistakes agencies make that could increase the likelihood of a FOIA requester filing a lawsuit against the agency. Here is a brief summary of the three mistakes she shared with the audience, and tips for how to avoid them:

  1. Provide Estimated Dates of Completion. We regularly hear from requesters that the agency’s FOIA process feels like a black box: they see their request go in and they understand that there might be delays in the agency’s response, but the lack of any insight into when they can expect a response is frustrating. Requesters have also told us that they will sometimes file a FOIA lawsuit against the agency because they have no idea about when the agency might respond to the request.

    To address requester frustration, the OPEN Government Act of 2007 required that agencies provide requesters with estimated dates of completion upon request. However, we still hear from requesters who have been unable to obtain this information, and we hear from agencies about how difficult it is to provide an estimated date of completion when, for example, there might be delays outside of the FOIA office’s control or the agency does not know how many pages might be responsive to the request.

    If you are an agency that has been asked for an estimated date of completion, we have a few suggestions for how to proceed. First, remember that an estimated date of completion is just that — an estimate. Be sure to let the requester know that the date is only your best guess and not a deadline. The Department of Justice (DOJ) has issued some very helpful guidance on how to determine what to provide the requester. Second, we have heard from agencies that providing an estimated date of completion can be an ideal opportunity to negotiate the scope of a very broad request.

  2. Proactively Disclose Records. Posting regularly requested records on your website alleviates the need for requesters to file certain FOIA requests – and can help requesters file more targeted requests. Posting frequently requested records in your FOIA Reading Room is also required by law — the 2016 amendments to the FOIA codify DOJ’s guidance that a record requested three times be posted online and require that agencies identify records that are of general interest or use to the public and that are appropriate for public disclosure.

    Proactive disclosure has been a top issue on the radar of the FOIA Advisory Committee. During its most recent term (2016-2018), the Committee unanimously approved several recommendations that help agencies determine types of records to proactively disclose, and make specific suggestions for general categories of records that should be posted in FOIA Reading Rooms.  Learn more about the Committee’s recommendations on the Committee’s Meetings webage.

  3. Clearly Communicate with Requesters. Through our dispute resolution program and in our agency FOIA compliance assessments, we have continued to observe that good communication helps ensure a smooth FOIA process—and helps to prevent disputes that may otherwise lead to litigation.

    The 2016 amendments to the FOIA add some requirements for how agencies must communicate with requesters at several points in the process, including in cases of unusual circumstances and in determination letters. While it has been great to see that agencies have responded to this requirement by including information about dispute resolution services offered by the FPL and OGIS, we have seen a lot of confusion arise from letters that do not provide clear directions about which step the requester should take when. We encourage agencies to use the model language suggested by OIP and OGIS. Further, initial determination letters should clearly explain why a request is denied and provide context where it is appropriate. For instance, if a search returned no records, explain where the agency searched and the terms it used. Such explanations may head off an appeal or the need to provide dispute resolution to the requester.

We hope you find these tips helpful, and we look forward to continuing to work with agencies and requesters to make the FOIA process more effective and transparent.

Posted in About FOIA, Alternative dispute resolution, Best practices, Uncategorized | Leave a comment

Sunshine Week 2018 (Early) Recap

Sunshine Week Program

Senator Patrick Leahy (D-VT) gives the keynote address during the National Archives’ 2018 Sunshine Week celebration. Photo by Jeffrey Reed.

There are still a few days left in Sunshine Week 2018, but we wanted to go ahead and share a recap of some exciting events that have already happened!

On Monday, we were honored to host the third annual National Archives’ Sunshine Week 2018 celebration in the William G. McGowan Theater. After a kick-off introduction by the Archivist of the United States, the afternoon featured three lively panels that generated stimulating discussions about the role of innovation in government, the opportunities and challenges surrounding digital civic engagement, and the roadmap for open data. We were particularly pleased and honored to have Senator Patrick Leahy (D-VT) present the afternoon’s keynote address. If you missed the event, you can watch the video on the National Archives’ YouTube Channel (unfortunately we did have a technical glitch at the beginning of the program that prevented us from livestreaming opening remarks from the Archivist of the United States and the beginning of the first panel; we hope to be able to post a video of the whole event soon).

On Tuesday, Director Semo testified before the Senate Judiciary Committee on progress on implementation of the FOIA Improvement Act. You can find Director Semo’s testimony, and video of the hearing on the Committee’s webpage.

We are also very happy to announce that this week we published our Fiscal Year 2017 Annual Report. Please download the report to learn more about demand for our dispute resolution services, trends we have noted through our agency compliance assessments, summaries of our work with the FOIA Advisory Committee and Chief FOIA Officers Council, and much more!

Looking ahead, we want to remind you that this afternoon (Wednesday, March 14) from 2:00 to 3:30 pm you can catch the livestream for Access and Transparency—Records Held at the National Archives. During the event, a panel of our National Archives colleagues will explain how they can help you request and access the restricted and non-restricted Federal records held at the National Archives. All week, you can also log on to the Citizen Archivist Dashboard to participate in the transcription challenge focused on the Pentagon Papers.

We hope you all have a great Sunshine Week, and we look forward to celebrating with you again next year!

Posted in About OGIS, National Archives and Records Administration, Sunshine Week 2018 | 1 Comment

U.S. Citizenship and Immigration Services FOIA Compliance Assessment Report Now Available

Earlier this week we published our FOIA compliance assessment report of U.S. Citizenship and Immigration Services (USCIS). OGIS has now published assessments of seven (7) component agencies of the Department of Homeland Security (DHS) – including the three FOIA programs responsible for processing the majority of DHS’s annual share of FOIA requests – USCIS, CBP and ICE.

OGIS’s agency assessments are based on direct observation and review of an agency’s FOIA case files, analysis of applicable data and documents, and interviews with agency employees and officials. Our reports are intended to provide sufficient detail about the FOIA program’s processes to understand its operations, and provide actionable recommendations to strengthen the FOIA program. These recommendations are based on our observations and knowledge of FOIA practices across the Federal government.

As we document in the report, USCIS regularly receives and processes the largest volume of FOIA requests government-wide – in Fiscal Year (FY) 2016 USCIS received an average of 640 requests daily, and responded to an average of 560 requests each workday. In our report, we note that USCIS implements strong management practices to ensure that routine requests for immigration-related records, which make up a vast majority of USCIS’s caseload, are handled as efficiently as possible and complex requests are given extra attention. We also note that USCIS’s communication with requesters encourages an efficient process by clearly articulating how to narrow a request to qualify for a track with a faster average processing time. Finally, we find that planned improvements to USCIS’s FOIA tracking and processing technology can further improve the program’s efficiency and customer service.

To learn more about the USCIS FOIA program and our recommendations, please download the report. We will follow up with the USCIS in 120 days to learn what steps they have taken in response to our recommendations.

Posted in Review, Uncategorized | Leave a comment

[UPDATED] Sunshine Week 2018 at the National Archives

 

 

Sunshine Week 2018 Agenda
Monday, March 12, 2018
1:00 pm – 5:30 pm
William G. McGowan Theater

 

 

Register to attend via EventBrite

Watch on YouTube (stream begins at 1:00 pm on March 12)

Speaker Biographies

1:00: Welcome by the Archivist of the United States

1:10: Innovation: Transforming Government of and by the People

  • Jim Thompson, Director of Innovation, Department of State
  • Navin Vembar, Chief Technology Officer, General Services Administration
  • Andrew Wilson, Digital Engagement Division Director, National Archives
  • Kate Zwaard, Digital Strategy Director, Library of Congress
  • Miriam Nisbet, former Director of the Office of Government Information Services (moderator)

2:20: Digital Civic Engagement: Lessons Learned in Congress

  • Steve Dwyer, Senior Advisor, Office of Democratic Whip Steny Hoyer
  • Seamus Kraft, Executive Director, OpenGov Foundation
  • Jessica Presley, Minority Staff, Committee on Oversight and Government Reform
  • Mollie Ruskin, Independent Designer and Strategist
  • Jessica Seale, Digital Director, Senator John Cornyn (R-TX)
  • Daniel Schuman, Policy Director, Demand Progress (moderator)

3:40: Break

4:00: Introduction by the Archivist of the United States and Keynote Address

  • Senator Patrick Leahy (D-VT)

4:15: Open Data: The Roadmap

  • Selene Arrazolo, Lead Data Analyst, Data.World, Inc
  • Victoria Collin, Acting Chief of the Management Controls and Assistance Branch, Office of Federal Financial Management, Office of Management and Budget
  • Hudson Hollister, Executive Director, Data Coalition
  • Sunmin Kim, Technology Policy Advisor, Senator Brian Schatz (D-HI)
  • Laura Manley, Director of Partnerships & Programs, Center for Open Data Enterprise
  • Peter Del Toro, Assistant Director, Strategic Issues, U.S. Government Accountability Office (GAO)
  • Alex Howard, Deputy Director,  Sunlight Foundation (moderator)

Don’t miss the National Archives’ other Sunshine Week celebrations, including:

  • a week-long transcription challenge using the Citizen Archivist Dashboard to focus on transcription of the Pentagon Papers; and
  • Access and Transparency—Records Held at the National Archives, an event on Wednesday, March 14 to teach users how we can help you request and access the restricted and non-restricted Federal records held at the National Archives. A panel of staff experts will discuss and answer questions about their work in making records available from our executive, legislative, and Presidential holdings. You can join the event live in the William G. McGowan Theater or catch it on YouTube.
Posted in Sunshine Week 2018 | 4 Comments

Updated: Sunshine Week Celebrations across the Federal Government

SunshineWeek2018FinalWe are looking forward to announcing details about our March 12th Sunshine Week celebration soon! While we put some finishing touches on our afternoon agenda, we wanted to go ahead and let you know about a couple of other Sunshine Week events hosted by our federal colleagues.

The Department of Commerce asked us to share the news about two events they are holding to mark the occasion. The title for Commerce’s event this year is “As a Matter of Open Government.” The kickoff event will be held at the Department of Commerce Research Library, 1401 Constitution Avenue, N.W., Washington, D.C. 20230, on Tuesday, March 13, 2018, between 9:00 a.m. and 12:00 noon. In Suitland, Maryland the Census Bureau will host Speaker Sessions on March 13th and 14th aimed at showing how the Census Bureau meets the principles (transparency, participation, collaboration, and accountability) of Open Government. The events are open to federal employees, contractors, and the public. Registration (via EventBrite) is required

Our colleagues at the Department of Justice (DOJ) Office of Information Policy (OIP) are hosting their annual Sunshine Week Kick Off Celebration during the morning on March 12 (our event will be held later in the afternoon). During the event, DOJ will honor FOIA professionals from across the government who have made extraordinary contributions to the field. Nominations must be emailed to DOJ.OIP.FOIA@usdoj.gov with the subject line “2018 Sunshine Week FOIA Award Nomination” by February 15, 2018. Learn more about the award categories and how to submit a nomination by reading OIP’s blog post. Registration (via EventBrite) is required.

During Sunshine Week the National Archives will also be running a transcription challenge using the Citizen Archivist Dashboard! Using the Citizen Archivist Dashboard is fun, and it allows users to make historical documents in the National Archives Catalog more searchable and accessible. This year’s Sunshine Week challenge will focus on transcription of the Pentagon Papers. [Update] The National Archives will also be hosting an event on Wednesday, March 14 to teach users how we can help you request and access the restricted and non-restricted Federal records held at the National Archives—often without a FOIA request. A panel of staff experts will discuss and answer questions about their work in making records available from our executive, legislative, and Presidential holdings. You can join the event live in the William G. McGowan Theater or catch it on YouTube.

Be sure to keep up with the latest on our Sunshine Week plans by following this blog or connecting with us on Twitter!

Posted in Sunshine Week 2018, Uncategorized | 1 Comment

OGIS Releases FOIA Compliance Self-Assessment Survey Results

self assessmentsWe are excited to announce the release of our analysis and observations of FOIA compliance issues based on the responses to FOIA questions included in the 2016 Records Management Self-Assessment (RMSA). The RMSA is a sophisticated agency self-assessment program developed and managed by the National Archives and Records Administration Office of the Chief Records Officer (CRO). Our partnership with the CRO on the RMSA has allowed OGIS to leverage over eight years of experience with conducting agency self-assessments and provided OGIS with the opportunity, for the first time since our doors opened in 2009, to gather comprehensive data about FOIA operations from almost every agency that is subject to FOIA

Reviewing FOIA policies and procedures for all administrative agencies subject to FOIA is a big job, and a key component of OGIS’s ongoing work to improve FOIA compliance across the government. To improve our understanding of FOIA compliance issues across the government, OGIS worked with the CRO to develop 11 questions about FOIA operations to include in the RMSA survey. The responses to the questions in the 2016 RMSA survey helped create a baseline for our understanding of the relationship between FOIA Officers and Federal Agency Records Officers and for the systems agencies do – or do not – have in place to identify information that could be proactively released. The questions and survey responses to the 2016 RMSA survey have also furthered our perspectives on observations in our agency compliance reports regarding program management, the use of technology, and communication with requesters. Please download the report to learn more about our observations and analysis of survey results.

We look forward to continuing this successful collaboration with the CRO in the future, and deeply appreciate the CRO’s willingness to work with us on this project. You can learn more about the RMSA and the CRO by visiting the National Archives’ Records Management Oversight and Reporting Program webpage and Records Express, the CRO’s blog.

Posted in About FOIA, Review | Leave a comment

Consumer Financial Protection Bureau Responds to FOIA Compliance Report

CFPBOn January 19, 2018 we received a formal response from the Consumer Financial Protection Bureau (CFPB) to our August 2017 CFPB FOIA Compliance Assessment. Like other agencies that have participated in our agency assessment program, CFPB volunteered to go through the process as part of their ongoing efforts to strengthen its FOIA Program.

Our assessment report documented that the CFPB FOIA Program maintains a relatively small backlog and is currently responding to most requests well within the law’s 20-working-day response time. Our report includes three primary findings:

  • CFPB faces management challenges that may impact its ability to to maintain its current responsiveness to FOIA requests during the next five years;
  • CFPB’s investments in technologies are improving the FOIA process; and
  • CFPB communicates well with requesters.

To address our first finding and to ensure that the CFPB FOIA Program maintains its responsiveness to FOIA requests, we recommended that the FOIA Program continue to work with the agency’s leadership to highlight the importance of the FOIA Program, and that the FOIA Program keep leadership apprised of its resource needs. CFPB responded that it agrees with both of these recommendations, and noted that the FOIA office has been using employees detailed from other parts of the agency to meet increases in workload. Our report also included recommendations to make it easier for members of the public to view records posted to the CFPB FOIA reading room; and to create a formal feedback loop between FOIA processors and CFPB attorneys who process FOIA appeals. CFPB responded that its FOIA Program has implemented both of these recommendations.

We greatly appreciate CFBP’s interest in working with us to further improve its FOIA Program. We look forward to continuing to work with many other agencies to identify strategies for improving compliance with FOIA across the government. If you are interested in having OGIS conduct an assessment of your agency’s FOIA program, please contact us.

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Advisory Committee Puts Forward Unanimous Recommendations to Improve FOIA

FOIA Act Advisory Committee Meeting

Members of the FOIA Advisory Committee during their meeting at the National Archives in Washington, DC, on July 21, 2016. NARA photo by Brogan Jackson.

On January 16, 2018 the FOIA Advisory Committee voted unanimously* in support of several recommendations to improve the administration of FOIA. Members of the three Subcommittees – Proactive Disclosure, Efficiency and Resources, and Searches – spent a little over a year researching issues and developing these recommendations.

The FOIA Advisory Committee brings together agency FOIA professionals and requesters to identify the greatest challenges in the implementation of FOIA and to develop consensus recommendations to address these issues. The Committee’s membership reflects the diversity of the FOIA community – including representatives of Cabinet-level and independent agencies, journalists, historians, academics, commercial requesters, open government advocates and others.

During the meeting, the Committee discussed and voted to support four proposals from the Proactive Disclosures Subcommittee. The aim of the proposals is to:

  • increase the release of agency FOIA logs in a way that is most useful to improving understanding of agency records and how the law is being used;
  • provide agencies with criteria for setting priorities for proactive disclosure;
  • give agencies a guide to categories of records that should be regularly released based on the ease of making them available and their importance for understanding the government’s actions; and
  • address requirements that documents on agency’s FOIA websites are accessible to individuals with disabilities.

The Committee opted to table one item from a Proactive Disclosure Subcommittee recommendation involving categories of records that should be proactively published; members of the Committee will further investigate agency policies concerning the publication of employee email addresses and consider the matter again at its next meeting.  The Committee also made changes to the Section 508 accessibility recommendation to highlight the sense of the Committee that agencies should be encouraged to not remove documents that are useful to the public from an agency’s FOIA website. Finally, the Committee also voted to support a set of best practices identified by the Efficiency and Resources Subcommittee and a set of recommendations and best practices offered up by the Searches Subcommittee. Minutes from the meeting and revised recommendations will be posted on the FOIA Advisory Committee webpages as soon as practicable; in the meantime, you can find video of the meeting on the NARA YouTube Channel.

At the FOIA Advisory Committee’s final meeting of the 2016-2018 Term, which will be held in the William G. McGowan Theater on April 17, 2018 from 10 am to 1 pm, the Committee will vote on its Final Report. The Committee’s Final Report will include all of its final recommendations and a description of the Committee’s research and deliberations. You can keep up with the work of the FOIA Advisory Committee by regularly checking this blog and following us on Twitter.

*In order to avoid a potential conflict of interest, the Director of the Department of Justice’s Office of Information Policy (OIP) abstained from voting on all of the recommendations, and the Director of the Office of Government Information Services (OGIS) abstained from voting on specific recommendations related to OGIS and the Chief FOIA Officers Council.

Posted in FOIA Advisory Committee | 2 Comments