An Update: Our Work on the Use of “Still Interested” Letters

Our Compliance Team is gathering and analyzing information on the use of "still interested" letters by Federal agencies. (NARA Identifier 12462655)

Our Compliance Team is gathering and analyzing information on the use of “still interested” letters by Federal agencies. (NARA Identifier 12462655)

A few months ago, we announced that the OGIS Compliance Team is reviewing agencies’ use of “still interested” letters to manage—and sometimes administratively close—backlogged Freedom of Information Act (FOIA) requests. While our work on this topic is not yet complete, we remain very “interested” in this topic.

A coalition of open government groups first raised the issue with us in October 2014, explaining that these letters are sometimes the first communication that requesters have received about their requests in months (or, in some cases, years). The coalition noted that agencies often give requesters only a few days to indicate their continued interest in the request. On the other hand, agencies explain that these letters are a useful way to make sure that they don’t waste resources processing records that requesters no longer want.

The Compliance Team has reviewed available statistics on the use of these letters and launched an effort to gather information on how they are used by particular agencies. One of the difficulties with this work is that agencies report the use of these letters in a variety of ways and it can be hard to distinguish cases closed by the use of “still interested” letters from other administrative closures. While we originally hoped to complete our report before the end of the calendar year, the information collection process has taken longer than anticipated. We expect to release our report before the end of March.

In addition to launching the government-wide review of the use of “still interested” letters, our Compliance Team has evaluated use of the letters as part of our agency compliance review process. You can learn more about how the Federal Emergency Management Agency and United States Coast Guard are using “still interested” letters by reading each agency’s FOIA compliance report. Future evaluations—including our soon-to-be-released report on the Transportation Security Administration—will also look at the use of “still interested” letters. We also brought to the Department of Homeland Security’s Chief FOIA Officer’s attention the use of “still interested” letters by a DHS component that was outside of existing Department of Justice guidance on the issue.

Do you have any feedback on the use of “still interested” letters, or other issues that the OGIS Compliance Team should review? Let us know in the comments section!

Posted in Review | 2 Comments

Smart Solutions to FOIA Problems

We have learned through both our mediation services and agency assessment programs that there is no one-size-fits-all approach to administering a Freedom of Information Act (FOIA) program. Agencies process different kinds of requests for vastly different records, and each agency faces its own challenges. For this reason, a practice that works for a small independent agency that processes only a few hundred requests a year might not work for a department that processes several thousands or hundreds of thousands of requests.

As we assess agency compliance, we work to tailor our recommendations to the agency. Our four published agency assessments include nearly 50 recommendations ranging from short-term and easy-to-implement suggestions to those that are longer-term and a heavier lift. During our assessments, we also take care to note the smart solutions that agencies have developed for themselves.  Below are just some of the smart practices we noted in the four reports we published to date.

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Our assessments have also helped to highlight some great communications practices. For example, acknowledgement letters from the Office of General Counsel (OGC) at the National Archives and Records Administration (NARA) let requesters know that they can check on the status of their request by telephone or email. OGC has also posted a sample FOIA request to its website—a simple step that helps requesters understand what they need to submit, and could help reduce the number of incomplete requests. FOIA processors in NARA’s Special Access and FOIA unit actively work with requesters to narrow requests while the Coast Guard helps requesters understand the process better by including in its responses a list of the search terms it used. We also noted that the Federal Emergency Management Agency includes in its acknowledgment letters information about the requester’s position in the agency’s queue; this information helps requesters understand why there might be a delay in the agency’s response.

Do you have a smart FOIA solution or a good communication practice that you would like to share? Let us know in the comments!

Posted in About FOIA, Best practices, Customer service, National Archives and Records Administration, Review | 1 Comment

OGIS Gives Thanks


Happy Thanksgiving from the FOIA Ombudsman! (NARA Identifier 293607)

Along with everyone in your Facebook feed, we at OGIS want to let you know about some of the things we are thankful for this year. Thank you all for your support of OGIS, and we hope you had a great holiday!

“I am thankful for the OGIS staff.  Every day, I see dedicated and tireless individuals going above and beyond the call of duty to make sure that things happen in our two programs—mediation and compliance.  They are making a difference and I am thankful for their efforts.  I am thankful for our external stakeholders who have supported OGIS and continue to work with us and see us as partner to create a more open government.  I am thankful for my FOIA colleagues across the government.  These FOIA professionals are dedicated to doing what is right in all kinds of settings—with all kinds of challenges.  They never give up.  They never give in.  I am thankful for their efforts.  I am thankful for my family and their support.  Without their love to remind me of all that is good and right in the world, this work would be far more difficult.” -James Holzer, Director

“I am so so thankful to OGIS’s wonderful staff who are extremely dedicated and professional; and thankful to have a new director on board.” -Nikki Gramian, Deputy Director

“I’m thankful for the opportunity to provide a meaningful service to the public.” -Hirsh Kravitz, Attorney-Advisor

“I’m thankful that we continue to have so many FOIA professionals who are interested in learning dispute resolution skills and want to participate in our training—spending a day with them is one of my favorite parts of my job!” -Carrie McGuire, Mediation Team Lead

“I am thankful for the opportunity to guide and learn from both agencies and requesters on the path to FOIA enlightenment and for the opportunity to witness both agencies and requesters working together to improve the FOIA landscape! I am also thankful for the opportunity to apply my newly learned (formal) mediation skills to advise both agencies and requesters to resolve disputes.” -Angel Simmons, Mediation Team

“There’s an old saying ‘There is no ‘I’ in team. I’m thankful that our Compliance Team has grown from one to three, and for the team’s hard work in 2015. I’m also thankful for the challenge of creating a program aimed at bettering FOIA for all.” -Kirsten Mitchell, Compliance Team Lead

“I’m thankful for the agencies who have opened their doors and files for our compliance assessments. For their honesty and candor.” -Kate Gastner, Compliance Team Member

“I’m thankful to work at an organization that is creating change in the administration of FOIA, and for the dedicated people outside and inside government who are working with us to improve the FOIA process. I am also thankful for everyone who takes the time to keep up with our blog and follow us on Twitter (@FOIA_Ombuds).” -Amy Bennett, Compliance Team Member

“I am thankful for my family, and the OGIS Team effort that moves the agency forward to becoming a catalyst for change involving the FOIA process.” -Teresa Brady, Administrative Officer

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Agency FOIA Regulations Update

As you might know, the Freedom of Information Act (FOIA) requires agencies to issue regulations that describe a few key areas of how the agency processes requests for information. Most agency FOIA regulations go beyond the bare bone requirements laid out in the law, however. The best agency FOIA regulations act as a map that helps both requesters and the agency navigate the process.

Agencies update their regulations to reflect changes in law, policy or practice. As we have discussed previously, OGIS regularly comments on agency FOIA regulations; we also work informally with agencies as they develop proposed updates.

Over the last year, four of the 15 cabinet-level agencies issued or proposed new FOIA regulations. Some of our eagle-eyed readers might have also seen that a component of the Department of Homeland Security (DHS), Customs and Border Protection (CBP), issued an update to its FOIA regulations earlier this week. For a number of years, CBP has operated under DHS’s FOIA regulations—and it will continue to do so; the update published this week lays out an exception regarding CBP’s treatment of confidential business information.

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As the graphic above shows, there are variations in the four agencies’ proposals. For example, regulations for the Departments of State, Justice, and Homeland Security echo Department of Justice (DOJ) Guidance that language referencing OGIS’s mediation services be included in the agency’s appeals response letter. The updated regulations also provide varying deadlines for requesters to submit appeals and minimum fees that the agency will charge.

So, how long will it be before these proposed changes will be in effect? DOJ’s new regulations are in effect now, but the date that the other proposals are finalized and take effect depends on a number of factors. Notices of proposed rulemaking in the Federal Register are often preceded by months or even years of internal discussion. Once the proposed rule is published, the agency accepts comments on its proposal for a specific number of days—generally between 30 and 180 days. The agency then responds to the comments and makes any necessary changes to its regulation. The amount of time between the end of the comment period and the issuance of the final rule depends on a number of factors, including the number and nature of comments the agency received.

As you may have surmised, public comment is an important part of the regulation review process. If you want to stay up to date with newly announced proposed FOIA regulations, one easy way to do so is to subscribe to the Federal Register and set your preferences to alert you to terms like “FOIA” and “Freedom of Information Act.” This will ensure that you never miss a chance to make your voice heard as new regulations are proposed.

If you have any questions or comments about an agency’s FOIA regulation, or about the regulations update process, let us know in the comments section!

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Working through a SORN-y Issue

The Department of Commerce and Veterans Affairs are joining other agencies in unlocking their FOIA files to make it easier for OGIS to help resolve disputes. (NARA Identifier 537853)

The Department of Commerce and Veterans Affairs are joining other agencies in unlocking their FOIA files to make it easier for OGIS to help resolve disputes. (NARA Identifier 537853)

It will soon be easier than ever for OGIS to help resolve Freedom of Information Act (FOIA) disputes at two agencies – the Department of Veterans Affairs (VA) and the Department of Commerce.  Both agencies recently published notices in the Federal Register that will make it easier for them to share their FOIA case files with us.

Because FOIA case files generally include personally identifiable information that is protected by the Privacy Act of 1974, agencies are not allowed to share files with other agencies unless they have notified the public that the files might be shared as a routine use. An agency provides the public with this notice by publishing a Privacy Act Systems of Records Notice (SORN) in the Federal Register.

Including VA and Commerce, 10 of the fifteen cabinet-level agencies and six non-cabinet agencies have added a routine use to their Privacy Act Systems of Records that allow all or part of their departments to share FOIA case files with OGIS. In the case of the Department of Agriculture, the SORN with OGIS language applies only to the Office of Inspector General.  In addition to allowing OGIS to talk to the agency about an individual FOIA dispute, updating their Privacy Act Systems of Records would make it easier to allow OGIS to review a sample of the agency’s case files during an agency compliance assessment.

This fall, OGIS sent letters to the Chief Privacy Officer at every agency that has not yet updated its SORN to include a routine use for OGIS. We’re happy to report that additional agencies will follow in VA and Commerce’s footsteps in the near future.

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Agencies Using Technology to Provide Estimated Dates of Completion

(NARA Identifier 6601289)

Some agencies continue to struggle with providing estimated dates of completion, while others have made providing this information part of their process. (NARA Identifier 6601289)

Providing estimated dates of completion can be a challenge—but it’s also the law. As we’ve previously noted, Congress amended FOIA in 2007 to require agencies to provide requesters with estimated dates of completion when asked.  We think that estimated dates of completion are so important that we analyze their use as part of our agency compliance assessments.

We know that some agencies continue to struggle with meeting this requirement, while others have made providing this information part of their process. The two agencies highlighted below use technology in different ways to fulfill the estimated-date-of-completion mandate.

The Internal Revenue Service

In 2014, OGIS co-hosted a FOIA Requester Roundtable on estimated dates of completion and  learned that the Internal Revenue Service (IRS) uses its FOIA processing software to track estimated completion dates for its pending requests. IRS has configured the system so that if the estimated date of completion passes before the case is closed, the agency’s processors use the software to generate a letter updating the requester on the status of his or her request.*

Department of Homeland Security

The Privacy Office at the Department of Homeland Security (DHS) has tackled the issue by creating an online tool that allows requesters to receive an estimated date of completion by entering the FOIA request’s tracking number. The online tracking tool uses data from the office’s FOIA tracking and processing system to automatically generate an estimated date of completion. Other DHS components that use the same tracking and processing system have access to this tool. Offices that are not on the same system can make use of the tool by providing the Privacy Office with data from their system in a standardized format.

When DHS’s online tracking tool first launched, FOIA processors needed to manually update the estimated date of completion to provide any additional time needed to respond to the requester. The office would sometimes receive calls from requesters who were upset that the estimated date of completion had passed with no response. The Privacy Office addressed this issue by updating the tracking and processing system so that an additional 30 days is automatically added to the estimate if the deadline passes without the case being closed. Since implementation of this fix, the volume of calls checking on the status of overdue requests has declined.

Does your office have a particularly good method for handling requests for estimated dates of completion? Please let us know!

*An earlier version of this post indicated that the IRS’s software automatically generated a letter updating the requester on the status of the request.

Posted in Best practices, innovation, IT Solutions, Requester Roundtable | Leave a comment

New U.S. Open Government NAP No Snore for FOIA Fans

NAP3The Administration released its third Open Government National Action Plan (NAP) on Tuesday October 27. The release of NAP 3.0 coincided with the Open Government Partnership Global Summit in Mexico.

The multi-national Open Government Partnership was created to encourage governments to commit to making their country more open and accountable to the public. Countries participating in the Open Government Partnership are required to consult with civil society and develop plans that include concrete steps the government will take over the next two years to increase transparency.

As the Nation’s record keeper, the National Archives and Records Administration has a leading role in several of the new NAP commitments, including commitments to modernize the Freedom of Information Act (FOIA).

Strengthening FOIA was a component of both the First U.S. NAP, which was released in July 2011, and the Second U.S. NAP, released in December 2013. We are happy that NAP 3.0 continues to focus on improving FOIA.

The new FOIA commitments are:

  • Expand the Services Offered on The Administration will harness technology to improve the services offered on gov. Building upon the commitment from the second NAP to launch a consolidated online FOIA service, the Department of Justice will collaborate with agencies, seek public input, review existing technologies such as FOIAonline, and leverage technological tools to expand on the existing Additional new features will also be explored, including a guided request tool, online tracking of request status, simplified reporting methods for agencies, improved FOIA contact information, and tools that will enhance the public’s ability to locate already posted information.
  • Improve Agency Proactive Disclosures by Posting FOIA-Released Records Online. The Department of Justice will lead a pilot program with seven agencies to test the feasibility of posting FOIA-released records online so that they are available to the public. The pilot will seek to answer important questions including costs associated with such a policy, effect on staff time required to process requests, effect on interactions with government stakeholders, and the justification for exceptions to such a policy, such as for personal privacy. As part of the pilot, the Department of Justice will get input from civil society stakeholders, including requesters and journalists. Upon completion of the pilot, the Justice Department will make the results available to the public.
  • Improve Agency FOIA Websites. The Administration will issue guidance and create best practices for agency FOIA web pages, including developing a template for key elements to encourage all agencies to update their FOIA websites to be consistent, informative, and user-friendly.
  • Increase Understanding of FOIA. The National Archives will develop tools to teach students about FOIA, drawing upon real-world examples to foster democracy and explain how the public can use FOIA to learn more about the government’s actions. The National Archives will seek partnerships with outside educational and library organizations to create and promote standards-compatible curriculum resources that teachers can use in government, history, or civics classes. All developed resources will be posted online.
  • Proactively Release Nonprofit Tax Filings. Tax filings for nonprofit organizations contain data that is legally required to be publicly released. Accessing the filings generally requires a request from the public, which can include a FOIA request, and results in more than 40 million pages provided in a non-machine-readable format. The Internal Revenue Service will launch a new process that will remove personally identifiable information before releasing the public information within electronically filed nonprofit tax filings. The electronically filed tax filings will be released as open, machine-readable data, allowing the public to review the finances and other information of more than 340,000 American nonprofit and charitable organizations.

OGIS looks forward to working with our colleagues at the National Archives, the Office of Information Policy at the Department of Justice, and other agencies to accomplish these commitments.

Posted in Open Government | 1 Comment

FOIA Advisory Committee Meeting Round-up

On Tuesday, October 20, the Freedom of Information Act (FOIA) Advisory Committee held its sixth meeting in the Archivist’s Reception Room. The purpose of the meeting was for the Committee’s three subcommittees – Oversight and Accountability, FOIA Fees, and Proactive Disclosure – to provide updates on their work.

As the Committee moves into the backstretch of its initial two year charter, the Committee’s focus is turning towards the content and structure of the advice regarding the government-wide administration of FOIA it wants to provide to the Archivist of the United States. For those of you who were not able to attend, OGIS live-Tweeted the meeting. Click on the picture below to read our updates.


A video of the meeting will soon be available on the National Archives and Records Administration YouTube Account. We also will post the meeting minutes on the Committee’s webpage.

We hope you will mark your calendars for the next Committee meeting on Tuesday, January 26, 2016. If you have any thoughts to share with the Committee before then, please submit them here.

Posted in FOIA Advisory Committee, FOIA Public Liaisons, Open Government | Leave a comment

Every Day is Conflict Resolution Day at OGIS

Agencies have embraced alternative dispute resolution  to improve customer service and reduce litigation. (NARA Identifier 513982)

Agencies have embraced alternative dispute resolution to improve customer service and reduce litigation. (NARA Identifier 513982)

Since OGIS opened in 2009, we’ve worked to improve the Freedom of Information Act (FOIA) process by providing mediation services to help resolve disputes between requesters and Federal agencies.  We handled more than 1,200 requests for assistance in Fiscal Year 2015 alone. In addition to mediating cases, we provide twice-yearly training to help agency FOIA professionals develop the skills they need to communicate productively with requesters.

OGIS’s mediation services fall under the broad category of Alternative Dispute Resolution (ADR). The use of ADR across the Federal government has surged in recent decades as agencies search for ways to improve customer service and reduce litigation. Agencies have employed ADR to help resolve issues ranging from workplace conflict to contracts and procurement and beyond.

To recognize the increasing importance of ADR in the Federal government, OGIS joined Archivist of the United States David Ferriero and the National Archives and Records Administration’s General Counsel, Gary Stern, in issuing a statement recognizing October 15, 2015, as Conflict Resolution Day. You can learn more about how other Federal agencies are embracing ADR by browsing and reading other agency’s Conflict Resolution Day messages.

Posted in About OGIS, Alternative dispute resolution, Best practices, Mediation services | Leave a comment

Don’t Miss Out: RSVP Now for the FOIA Advisory Committee Meeting

We hope you can join us at the National Archives on October 20th! (NARA Identifier 3493274)

We hope you can join us at the National Archives on October 20th! (NARA Identifier 3493274)

If you’re in the DC area, we hope you can join us for the next meeting of the federal Freedom of Information Act (FOIA) Advisory Committee, taking place on Tuesday, October 20th from 10 am to 1 pm.  The meeting will be held at the National Archives and Records Administration, 700 Pennsylvania Avenue, NW in the Archivist’s Reception Room (Room 105). To attend you must RSVP.

Similar to past meetings of the FOIA Advisory Committee, the purpose of this meeting is to hear updates from the subcommittees and gather public feedback. Our regular readers know that the Committee is focusing its work on three issues: FOIA fees, oversight and accountability, and proactive disclosure. The Committee is expected to present recommendations to improve the FOIA process to the Archivist of the United States.

Over the past year, Committee members have been hard at work studying these issues and gathering information in order to inform its recommendations. Before the meeting, we hope you will take a few minutes to look through the collection of resources put together by members of the Oversight and Accountability Subcommittee and the results of the Subcommittee’s survey of FOIA Public Liaisons. You can also review the results of a survey created by the Fees Subcommittee on the use of FOIA fees by agencies.

If you cannot attend the meeting, please be on the lookout for videos of the meeting on the Committee’s meetings web page. If you have comments for the committee, they may be submitted online.

Posted in FOIA Advisory Committee | Leave a comment