Case Study in Clarity

We play a valuable role in facilitating communications between a requester and an agency. A recent request made by National Public Radio (NPR) to the Naval Research Laboratory (NRL) provides an example of this function.

NPR reporter Caitlin Dickerson made a request to the NRL for records about a World War II-era medical experiment that used human subjects; the agency released the records in full. While Ms. Dickerson was mostly pleased with the agency’s release, the records included a number of photographs which, when reproduced, were blurry. NPR contacted the agency, asking that the images be re-scanned at a higher resolution; the NRL scanned the images again and released the second set. Unfortunately, this second set of images, while better than the first, were still not of a high-enough resolution to be useful to NPR. Ms. Dickerson contacted the agency again, but the NRL, having produced two sets of records at that point, thought that they had fulfilled the FOIA request in accordance with the law and closed the request.

At this point, NPR contacted OGIS to see if this dispute could be resolved outside of the administrative appeal process. NPR asked us to inquire whether someone from the organization could bring NPR’s own equipment to the agency in order to scan the images at the resolution she needed. We contacted the agency to discuss this offer; the NRL declined, citing security regulations at the facility in which the records were held.

Medical Experiment

While we often encourage agencies to resolve complex FOIA issues by drawing on the knowledge of other departments (for instance, enlisting the assistance of the agency’s information technology professionals with requests for database records), in this instance, the requester took the same approach. NPR discussed the matter internally, drawing on the expertise of NPR’s photo editor, NRL agreed to scan the pictures again using NPR’s recommended settings, and we facilitated this exchange of information. The agency made the necessary adjustments and released a third set of records that met the NPR’s needs.

While we primarily work with FOIA disputes at the conclusion of the FOIA process—after the agency has reviewed its actions and decisions on appeal—in this instance, an earlier intervention on a relatively simple matter helped the requester get the records she needed faster, and kept an appeal out of the agency’s backlog. The result was two news stories ( and that illuminate a fascinating aspect of American military history, punctuated by photographs that make the stories that much more compelling.

Posted in About OGIS, Alternative dispute resolution, Best practices, Customer service, FOIA Public Liaisons, Mediation services, OGIS Case Study | 1 Comment

OGIS Releases Compliance Review of TSA FOIA Program

OGIS releases its compliance review of the TSA FOIA Program. (NARA ID 5699547)

OGIS releases its compliance review of the TSA FOIA Program. (NARA ID 5699547)

We are pleased to announce the release of our compliance assessment of the Transportation Security Administration (TSA) Freedom of Information Act (FOIA) program. TSA is one of the six components of the Department of Homeland Security (DHS) that OGIS is reviewing.

Similar to our assessments of the Federal Emergency Management Agency and the United States Coast Guard, the TSA report includes a number of observations about the component’s FOIA program, which faced a 70-percent increase in back-logged requests between Fiscal Year (FY) 2013 and FY 2014. TSA has a centralized FOIA process—all requests are processed in the headquarters FOIA office, regardless of where the records are kept. Frequently requested records pertain to incidents at airports, the No-Fly List, internal and external investigations, and contracts.

Our report includes a number of recommendations to improve the program, including that the TSA FOIA office continue discussions with the Sensitive Security Information (SSI) office regarding resolving inefficiencies and duplication of efforts. Both offices review records to determine whether they should be released under FOIA.

Our other recommendation include:

  • Monitor the number of cases closed and volume of pages reviewed by each processor and establish data-driven goals that will reduce TSA’s backlog and improve timeliness
  • Fully implement the tracking and processing system
  • Ensure all information in the tracking and processing system is accurate and complete
  • Proactively communicate with requesters and alert them to the status of their requests

Please download our report to see all of our observations and recommendations. Watch this blog and follow us on Twitter—@FOIA_Ombuds—to keep up with our assessment program.  In the coming months, watch for reports on FOIA programs at Customs and Border Protection, United States Secret Service and Immigration and Customs Enforcement.

Posted in Review | 1 Comment

New Year’s Message from the FOIA Ombudsman

The FOIA Ombudsman went though a lot of "change" during 2015. (NARA Identifier 296602)

The FOIA Ombudsman went though a lot of “change” in 2015. (NARA Identifier 296602)

“Change” was 2015’s word of the year for the FOIA Ombudsman.

In a year of great change for OGIS, I may have been the most obvious one: I took over as the office’s second Director in August 2015. When I accepted the job, I knew that as the FOIA Ombudsman I could have a much larger impact across the FOIA landscape, and do more to help improve the FOIA process for agencies and requesters alike. I want to thank Archivist of the United States David Ferriero for giving me this opportunity, and my predecessor, Miriam Nisbet, for her strong leadership of the office. I also want to thank my Deputy Director, Nikki Gramian, for doing an excellent job of running the office in the interim.

Another obvious change over the last year has been the creation of our Compliance Team. In 2015, OGIS issued assessments of agencies’ FOIA compliance for the National Archives and Records Administration’s Special Access and FOIA Program, and for the Federal Emergency Management Agency and United States Coast Guard at the Department of Homeland Security. The Compliance Team also started work on assessments of FOIA programs at the Transportation and Security Administration and Customs and Border Protection. If you are interested in our Compliance Team’s future plans, you can look at our FY 2016 Calendar, which lists our upcoming assessments.

We have also seen continual growth in demand for services from our Mediation Program. When OGIS opened in 2009, requests for help with the FOIA process awaited us. In addition to providing high-quality mediation services, our Team has also developed a strong dispute resolution skills training program. Thanks to our training, 600 FOIA professionals at 58 departments and agencies have learned skills that help them prevent and lessen disputes with requesters. I am very proud of my Mediation Team’s accomplishments, and look forward to working with them to see that we continue to improve the program in the coming year.

During 2015, we also made an effort to make sure we regularly communicate with our stakeholders. As you might have noticed, we began following a regular posting schedule on our blog: in 2016, we plan to post material to the blog every Wednesday. 2015 also saw our launch into the world of social media via our Twitter account.

If I had to guess what will be the word of the year for 2016 for the FOIA Ombudsman, I would say that it will once again be change. We have many exciting plans for 2016, and I look forward to telling you more about them in the future.


James V.M.L. Holzer

Posted in About FOIA, About OGIS, Message from the Director, Ombudsman | Leave a comment

Save the Date: National Archives Sunshine Week Event on March 14

SunshineWeek2 (2)Here at OGIS, we celebrate the importance of access to information every day. Which is why Sunshine Week, an initiative launched by the American Society of News Editors to focus on open government, is one of our favorite observances.

In this spirit, we will be celebrating Sunshine Week 2016 with a special event hosted by the National Archives and Records Administration in the McGowan Theater. Our event will be on Monday, March 14, 2016, from 1 – 4:30 pm.

Sunshine Week 2016 is especially notable because it is the 50th anniversary of the Freedom of Information Act (FOIA). In honor of this milestone, we hope you will join us for a discussion about the importance of access to government information and the potential power of technology to open the government. The Archivist of the United States David Ferriero will kick off the event, and we have invited an exciting group of people from inside and outside of government to share their insights about changes to law and policy and the creation of tools to improve government transparency.

We will share more information as the date gets closer, but in the meantime please mark your calendars, and help us spread the word. If you are on Twitter, please share our Save the Date Card and tag us, @FOIA_Ombuds!

Posted in Sunshine Week 2016 | Leave a comment

The Appeal of the Appeal Letter

SantaLetter-6011018While the Freedom of Information Act (FOIA) requires agencies to notify requesters of the legal reasoning for upholding either all or part of an initial denial, the statute gives agencies very little—well, actually, no—additional guidance about what should be in an appeal response.

As you might know, we at OGIS are big fans of the administrative appeals process. As we have previously explained, filing an administrative appeal is critical to protecting your rights under the law. We also appreciate that during the appeals process, the agency has an opportunity to re-evaluate all of its original decisions—from the adequacy of the search to the use of any exemptions.

Through our mediation process, we see many appeal response letters. We love to see well-written appeal response letters that help the requester better understand the agency’s decisions. A quick poll of OGIS’s staff turned up a few FOIA offices that we believe send out detailed, helpful appeal responses: several staff members cited the usefulness of appeal response letters written by the U.S. Customs and Bureau Protection at the Department of Homeland Security. Our staff also mentioned that they have seen detailed and thorough letters written by the United States Postal Services and USPS Office of Inspector General. OGIS staff also noted that appeal responses from the Department of Energy’s Office of Hearings and Appeals are detailed and reflect that the office has gone through a thorough process of fact gathering and analysis before issuing the response – you can view a summary of all of the office’s latest decisions, including on FOIA appeals here.

The next question, of course, is what is it about these appeals responses that we like?

While the Office of Information Policy (OIP) at the Department of Justice has not issued guidance specifically on appeals responses, a great deal of OIP’s guidance on what elements should be included in an agency’s initial response is very useful when thinking about what is included in a good appeal response. For example, as OIP suggests agencies, should make a “reasonable effort” to provide the requester with an estimate of the amount of material withheld and describe the agency’s administrative actions. Additionally, agencies should provide requesters with an individualized tracking number for any request that it will take more than 20 days to respond to, and the agency should include information about how to track the status of the appeal.

Other features we generally see in good appeal responses are:

  • Summary of the issues raised in the appeal. Our favorite appeal letters generally summarize the issues that the requester raised in the appeal. This practice is in line with OIP’s guidance on initial responses encouraging agencies to include a description of the agency’s interpretation of the request. This practice ensures that the agency and the requester share a common understanding of the issues, and helps assure the requester that the agency considered all of his or her arguments.
  • Explanation of the agency’s actions. During a good appeals process, an agency employee who has some degree of independence from the decisions made during initial processing will gather and review the facts of the case. A good appeal letter will explain to the requester the steps that the agency took during this review process. Providing an explanation of the agency’s actions helps improve the requester’s confidence in the thoroughness of the agency’s appeal process.
  • Explanation of the agency’s decisions. A good appeal letter will help the requester understand the agency’s position by providing a thorough explanation of the agency’s decision.
  • Relevant case law. Providing requesters with citations to relevant case law will help them better understand the relative merit of their claims, and their chances of prevailing if they file a suit against the agency.

We understand that writing good appeals responses takes time and resources that not all FOIA or legal offices have immediately on hand. The Coast Guard Administrative Law Judge (ALJ) program which, as we noted in our compliance reviews of the Federal Emergency Management Agency and the Coast Guard FOIA programs, processes appeals for DHS components on a reimbursable basis, prepares detailed and useful appeal response letters. This program is a great way for a component that handles a relatively small number of appeals per year to ensure that appeals are thoroughly and independently reviewed and responded to by someone with some level of expertise in the law without having to have a legal expert on staff dedicated to handling appeals.

Has an agency sent you a particularly good response to an appeal that helped you better understand the agency’s decision? Let us know about it in the comments section!

Posted in About FOIA, Best practices, Customer service | Leave a comment

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.

FOIASolutions (1)

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

Posted in About OGIS | Leave a comment

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.

NewRegulations (1)

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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