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.

Posted in Best practices, Review | Leave a comment

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

Game of Thrones FOIA Requesters Face “Stark” Reality

Hobnobbing with movie stars and seeing advance copies of popular shows are some of the perks of serving as the President. (NARA Identifier 199325)

Hobnobbing with movie stars and seeing advance copies of popular shows are some of the perks of serving as the President. (NARA Identifier 199325)

It looks like FOIA requesters won’t be able to use their favorite access law to find out what really happened to Jon Snow.

Last week the #FOIA Twittersphere was buzzing with news that an enterprising reporter had filed an unexpected Freedom of Information Act (FOIA) request; she requested the advanced copies (or “screeners”) of the next season of HBO’s “Game of Thrones” that the popular show’s creators provided to President Obama.  But what are the chances that this request will result in release?

First, it is important to remember that FOIA does not apply to most Presidential records—while you can make a request for records of five offices in the Executive Office of the President (Office of Management and Budget, Office of Science and Technology Policy, Office of the National Drug Control Policy, Council on Environmental Quality, and Office of the U.S. Trade Representative), courts have ruled that  FOIA does not apply to the “President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.”

The White House Executive Residence staff is the most likely office to have the Game of Thrones screeners, and it is among those offices not subject to FOIA; for this reason, the request is likely to be denied. At least two homebrewers faced the same obstacle recently when they filed FOIA requests for the White House’s beer recipe. In the case of the beer recipe, while the FOIA requests were unsuccessful, the White House opted to proactively release the recipe on its blog.  It seems unlikely that the Administration would take a similar step with its advance copy of the upcoming season of Game of Thrones.

Are you interested in learning more about FOIA to distract yourself until we can all rejoin the action in Westeros? Be sure to check out our Toolbox, which includes lots of useful resources for FOIA requesters and agency FOIA professionals alike.

Posted in About FOIA, FOIA in the news | Leave a comment

RSVP for the April 19th FOIA Advisory Committee Meeting

We hope to see you come through the door for the April 19 meeting of the FOIA Advisory Committee! (NARA Identifier 23856573)

We hope to see you come through the door for the April 19 meeting of the FOIA Advisory Committee! (NARA Identifier 23856573)

If you are in the DC area (or will be next week), be sure to reserve your seat for the April 19th meeting for the FOIA Advisory Committee! The meeting will be held at the National Archives and Records Administration, 700 Pennsylvania Avenue, NW in the Archivist’s Reception Room (Room 105) from 10 a.m.– 1 p.m.

This is the last FOIA Advisory Committee meeting scheduled to be held under the Committee’s current charter. Over the course of two years, the Committee’s members have considered some of the most important issues facing the Freedom of Information Act (FOIA), and have worked to develop consensus recommendations for how to improve the administration of FOIA.

The agenda for the April 19th Committee meeting includes updates from the Fees, Oversight and Accountability, and Proactive Disclosures subcommittees. The Committee will also hear from Margaret B. Kwoka of the University of Denver Sturm College of Law, who will present findings from her recent paper on the use of FOIA by commercial requesters. We also expect for the Committee to vote on its first recommendation to the Archivist of the United States to improve the FOIA process: that the Office of Management and Budget (OMB) update its 1986 fee guidelines.

As we wind down the Committee’s first term, we are also looking ahead to what the Committee can accomplish in its next iteration. As we announced earlier this month, we are looking for committee members who represent a wide range of views and interests, including large and small Federal agencies, requesters from different fee categories, historians, journalists, academics and nonprofit organizations that advocate on FOIA issues. Self-nominations are welcome. To apply, please email foia-advisory-committee@nara.gov the following information by April 30, 2016:

  • 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 résumé or curriculum vitae.

We hope to see you on April 19th, and look forward to accepting your nominations for new Committee members.

Posted in FOIA Advisory Committee, OGIS events | Leave a comment

Let Us Help You: Seeking an OGIS Assessment

Your agency letterhead may not be this awesome, but don't let that stop you from asking for an OGIS assessment. (NARA Identifier )

Your agency letterhead may not be this awesome, but don’t let that stop you from asking for an OGIS assessment. (NARA Identifier 571199)

Interested in an assessment of your agency’s FOIA program conducted by a team of FOIA subject-matter experts? Wonder how your agency can be added to the Office of Government Information Services (OGIS) assessment calendar? Let us help with some sample language for the Agency officials or Chief FOIA Officer at your agency to use in a letter to OGIS Director James Holzer.

But first, a little about our agency assessment program. Our assessments are holistic reviews of a FOIA program in which we interview employees and officials of the agency, review FOIA request and appeal files, conduct an online survey of FOIA processors, and study FOIA litigation against the agency, among other activities. At the end of our assessment, we publish a report that highlights best practices and areas for improvement. Our recommendations center around management, technology and communications.

We are in the midst of our seventh assessment after launching the program within two offices of our own agency, the National Archives and Records Administration, and completing assessments at four Department of Homeland Security components.

Interested? Use this sample language to send a letter on your agency letterhead to Director Holzer:

Freedom of Information Act (FOIA) program at [AGENCY/DEPARTMENT]. Specifically, I would like your Compliance Team’s assistance in improving our administration of FOIA by reviewing the program and providing us with a written report of the assessment results. I understand your reports focus on recommendations for improvement and observed best practices, and are designed to help agencies solve their biggest challenges.

Posted in Review | Leave a comment

Help Improve the FOIA Process: An Update on the FOIA Advisory Committee

Volunteer to be a part of improving the FOIA process! (NARA Identifier 513691)

Volunteer to be a part of improving the FOIA process! (NARA Identifier 513691)

Do you love the public’s right to know? Do you want to work with people inside and outside of government to improve the Freedom of Information Act (FOIA)? If you answered yes to both these questions, you might be just the person we are looking for to join the Federal FOIA Advisory Committee!

Last week we announced that we are seeking nominations for two-year appointments to the FOIA Advisory Committee. The Committee’s original two-year charter expires in May 2016, and we anticipate renewing the charter for another two-year term. As described in the announcement, we are looking for committee members who represent a wide range of views and interests, including large and small Federal agencies, requesters from different fee categories, historians, journalists, academics and nonprofit organizations that advocate on FOIA issues. Self-nominations are welcome. To apply, please email foia-advisory-committee@nara.gov the following information by April 30, 2016:

  • 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.

Even as we recruit members for the Committee’s next term, we want to remind you that current Committee members are hard at work developing consensus recommendations to improve the FOIA process. Please mark your calendars for April 19, 2016, to join committee members for the last meeting before the current Committee’s charter expires. During the meeting, we expect for members to further discuss and vote on a recommendation to Archivist of the United States David S. Ferriero that the Office of Management and Budget (OMB) update its 1987 guidelines on FOIA fees. Professor Margaret B. Kwoka of the University of Denver Sturm College of Law will also present her recent paper on the use of FOIA by commercial requesters. Be sure to watch this blog and follow us on Twitter for updates about the meeting and how to register to attend.

Posted in FOIA Advisory Committee | 1 Comment

Fiscal Year 2015 at the FOIA Ombudsman

Report Cover 2016Fiscal Year (FY) 2015 was very busy for the FOIA Ombudsman’s office. You can get a more complete picture of our work during FY 2015 by checking out the latest version of our Annual Report.

One major change to OGIS in FY 2015 was the appointment of a new Director, Dr. James Holzer. During the transition between the retirement of OGIS’s first Director, Miriam Nisbet, and Director Holzer coming on board in August 2015, we continued to offer mediation services and review FOIA compliance under the leadership of OGIS’s Deputy Director, Nikki Gramian.

Since we began offering mediation services in 2009, we have assisted customers in all 50 states and in 22 foreign countries. Our Mediation Program’s FY 2015 numbers are impressive: we received 1,160 requests for assistance with Freedom of Information Act (FOIA) issues—a 32-percent increase from FY 2014—and closed more than 1,200 cases; we also handled cases involving all 15 cabinet-level agencies and 34 percent of all other agencies. Be sure to read our FY 2015 Annual Report for more in-depth information about the types of cases we handled, where in the FOIA process requesters came to us, and more.

FY 2015 also marked the first full reporting period of OGIS’s Compliance Program. During the reporting period, our Compliance Team published assessments of the Special Access and FOIA program at the National Archives and Records Administration (NARA) and of two Department of Homeland Security components: the Federal Emergency Management Agency and United States Coast Guard. (In late FY 2014, we published our first compliance report the FOIA program at NARA’s Office of General Counsel.) While we recognize that every agency FOIA program is unique in the records it processes and the type of requests it receives, we note that a FOIA program is set up for success if it properly manages its resources, uses technology appropriately, and communicates effectively with requesters. In the four compliance reports we published by the end of FY 2015, we made nearly 50 recommendations largely focused on improving management, the use of technology, and communication.

Our FY 2015 Annual Report also includes an update on the status of the recommendations we have made to improve the FOIA process, and reports on our efforts to better engage our stakeholders.

While FY 2015 was busy, FY 2016 is proving to be even more exciting! Be sure to keep up with our work by checking this blog (we regularly add new posts on Wednesdays) and following us on Twitter — @FOIA_Ombuds.

Posted in About OGIS, OGIS's Reports | 2 Comments

Dispute Resolution Skills for FOIA Professionals Training Session: April 13, 2016

Plant the seeds of better communication with our training program.  (NARA Identifier 534118)

Plant the seeds of better communication with our training program. (NARA Identifier 534118)

Do you find yourself locked in disputes with FOIA requesters (or agency colleagues)? Would you like to learn constructive ways to resolve or avoid disputes in the future?

OGIS will present a training session designed to help FOIA professionals develop dispute resolution skills on Wednesday, April 13, 2016, at the Archives building on Constitution Ave between 7th and 9th streets NW in Washington, DC. This free, all-day session is appropriate for anyone in your agency who works with FOIA, including FOIA Public Liaisons, program managers, FOIA processors, FOIA attorneys and others. Participants will develop a working knowledge of Alternative Dispute Resolution techniques, learn how working with OGIS can help resolve disputes, practice active listening and good communication, and develop strategies for working with difficult people.

If you would like to register for this program, please register using Eventbrite at: http://www.eventbrite.com/e/dispute-resolution-skills-training-session-april-13-2016-tickets-22924276127. Space for this training program is extremely limited and the program fills up quickly, so please do not wait to register.

Posted in Alternative dispute resolution, Training | 3 Comments