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OGIS Sets Up Shop at IRE

OGIS offered ombuds advice -- but sadly, not lemonade -- at the recent IRE conference.

OGIS offered ombuds advice, rather than lemonade, at the recent IRE conference. National Archives Identifier 557757

OGIS recently set up a pop-up shop, of sorts, on the West Coast offering one-on-one mini ombuds sessions with journalists and gathering ideas for improving the FOIA process.

I’m pleased to have represented OGIS at the annual conference of the Investigative Reporters and Editors (IRE), a non-profit organization dedicated to improving investigative reporting.

The conference, June 26-29 in San Francisco, came on the heels of the inaugural meeting of the FOIA Advisory Committee, which is mandated with studying FOIA across the government and advising on ways to improve FOIA. The committee’s first meeting included brainstorming on legislative, policy and process changes to improve the FOIA process.

Journalists attending the IRE conference had some ideas for improving the process, which they shared with me and others at a session titled “Help Shape FOIA Reform & Join the #FOIAFriday Community.”

Several of the ideas include, in no particular order:

  •  Increasing online posting of government records. The FOIA Advisory Committee thought increased proactive disclosure should be a priority—and several journalists and a media lawyer attending the IRE session agreed. “I think we should be moving to putting everything out there,” said Charles Ornstein, a senior reporter with ProPublica, who noted that the city of Oakland, CA, proactively posts its records online.
  •  Completely exempting journalists from FOIA fees. Journalists are generally afforded media status for FOIA fee category purposes, meaning they pay no search or review fees, and pay duplication costs after the first 100 pages. Journalists are not granted fee waivers by virtue of holding press credentials—like any other requesters, journalists must meet analytical factors, including that the public interest is likely to contribute significantly to public understanding of the operations or activities of the government. That should change, said Djordje Padejski, innovation projects director at the JSK Journalism Fellowships program at Stanford University. “In many European countries, journalists are exempt from fees by default,” he said “The U.S. is seen as a leader on freedom of information issues and the fees should reflect that. I believe journalists should be exempt by default from paying fees.”
  • Putting sanctions in the FOIA statute for violating the law. “How many FOIA officers have you seen demoted for violating the FOIA” asked Mr. Padejski. “Put teeth in the law; it’s their work to know the law.”

In addition to presenting on another panel titled “Free the Data,” during which I discussed best practices for database requests and the importance of FOIA Public Liaisons in the FOIA process, I also held 20-minute sessions in which journalists could ask for help with the FOIA process. I met with about a dozen journalists who asked for help on everything from filing a FOIA request to how to deal with a request that an agency had closed in error. A big thanks to IRE for asking me to be part of its conference. As I told many of the journalists I met with, Happy FOIAing!

 

FOIA Advisory Committee begins setting priorities

 

FOIA Advisory Committee members have lots of ideas for bettering FOIA. (Photo by Michelle Farnsworth of the National Archives)

FOIA Advisory Committee members have lots of ideas for bettering FOIA.
(Photo by Michelle Farnsworth of the National Archives)

 

Expanded oversight of the Freedom of Information Act (FOIA) process, increased proactive disclosure, and reforming—or perhaps eliminating—fees emerged as top priorities of the FOIA Advisory Committee during its inaugural meeting June 24.

The committee—comprised of 10 government members and 10 non-governmental members with considerable FOIA expertise—is mandated in the second Open Government National Action Plan (NAP) with studying FOIA across the government and advising on ways to improve FOIA.

“FOIA administration and its process is not something that is or should be entirely government run; it is a partnership between the government and requesters,” Jay Bosanko, Chief Operating Officer of the National Archives and Records Administration (NARA), told the committee.

The NARA-run committee spent part of its first meeting brainstorming and informally voting on ideas for legislative, policy or process changes that could improve FOIA, a process facilitated by Lynn Overmann, senior adviser in the White House Office of Science and Technology Policy.

Committee Chair and Office of Government Information Services (OGIS) Director Miriam Nisbet noted that the brainstorming is not intended to set the committee’s agenda in stone. “This is a two-year effort,” she said. “We are not going to be able to solve everything today or come up with everything we want to discuss.”

A majority of the committee members think that FOIA would benefit from more oversight and accountability, whether through existing entities such as the Department of Justice’s Office of Information Policy or the Office of Government Information Services, the FOIA Ombudsman, or through an entity outside the executive branch.

Committee member Nate Jones, FOIA Coordinator at the non-governmental National Security Archive, suggested reviewing FOIA lawsuits to determine whether there are cases that need not be litigated. He also suggested a pre-litigation program within agencies to have closer scrutiny of whether the Government will defend an agency in litigation.

The committee agreed to look at what oversight now exists; identify gaps in oversight as well as best practices in state, Federal and international oversight of freedom of information programs; and how compliance audits might contribute to robust oversight.

The committee also set proactive disclosure as a priority and agreed to look at existing requirements regarding proactive disclosure, what the barriers are to proactive disclosure and what agencies have excellent proactive disclosure.  The committee also discussed having requesters help set priorities for proactive disclosures.

“To make proactive disclosure part of the culture, you need more than the FOIA people at the table,” said Karen Finnegan, Chief of the Programs and Policies Division at the Department of State, which develops FOIA policies and procedures, handles FOIA litigation and manages the Department’s special document productions. Information technology experts, open government managers and others should also be involved.

Several committee members noted that Section 508 compliance, which makes government records posted online accessible to individuals with disabilities, is an unintended obstacle for agencies striving to make proactive disclosures. Another idea: identifying common sets of records that all agencies can post.

The committee also set fees and fee waivers as a priority. The committee discussed how and whether to reform FOIA fees; whether to revise or eliminate fees for non-commercial or all requesters; and how to reduce “fee animosity” between requesters and agencies. Ginger McCall, Director of the Open Government Program at the Electronic Privacy Information Center (EPIC), and others suggested having bright lines with regard to fees and certain categories of requesters.

Committee members paired up (one government member and one non-government member) to lead each of the three projects.

Three other ideas that came up during brainstorming are already being addressed as part of the NAP, including a common core FOIA regulation, a consolidated government-wide FOIA portal, and training.

Other ideas the committee considered include (in no particular order):

  • Changing the 20-working-day  response time to 20-working days  for simple requests and 60-working days for complex requests
  • Aiming to fulfill every request within one year
  • Adding a role for FOIA requesters in legislation
  • Studying FOIA backlogs and coming up with a way to reduce them
  • Cross-training between Federal FOIA professionals and requesters
  • Training all agency employees that FOIA is everyone’s responsibility
  • Harnessing technology to improve the FOIA process
  • Fostering communications between agencies and requesters
  • Developing a way to access immigration records outside of the FOIA process
  • Building a bridge between FOIA and records management
  • Requiring standard performance criteria for all Federal FOIA professionals
  • Increasing discretionary release
  • Improving the FOIA referral process
  • Revising the statute so it is written in plain writing that everyone can understand
  • Reducing and clarifying Exemption 3 statutes, non-FOIA statutes that exempt certain categories of information
  • Establishing a triage system so records are not destroyed while agencies are processing FOIA requests
  • Standardizing FOIA websites
  • Improving the ability of public to access documents by metadata tagging
  • Establishing an Exemption 5 balancing test

Have ideas? We’d love to hear from you!

 

Upcoming OGIS Training Session: Dispute Resolution Skills for FOIA Professionals

Learn strategies for dispute resolution and stop butting heads with colleagues and requesters. (National Archives Identifier 7722542)

Learn strategies for dispute resolution and stop butting heads with colleagues and requesters. (National Archives Identifier 7722542)

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, July 9, 2014 at the Archives building on Constitution Avenue between 7th and 9th streets NW in Washington, D.C. 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 have any questions or if you would like to register for this training program, please drop us a line at ogis@nara.gov. Space for this training program is extremely limited and the program fills up quickly, so please don’t wait to register.

Register to attend the June 24, 2014 FOIA Advisory Committee Meeting

Use Eventbrite to register for the FOIA Advisory Committee Meeting

Use Eventbrite to register to attend the FOIA Advisory Committee Meeting

FREEDOM OF INFORMATION ACT (FOIA) ADVISORY COMMITTEE TO HOST
AN OPEN MEETING ON JUNE 24, 2014

DATE: Tuesday, June 24, 2014

TIME OF MEETING: 10:00 am – 1:00 pm

WHERE: The Archivist’s Reception Room, Room 105 in the National Archives Building

ADDRESS: 700 Pennsylvania Avenue, N.W. Washington, DC 20408-0001

WHAT: The newly established Freedom of Information Act (FOIA) Advisory Committee will host an open meeting to discuss improvements to FOIA administration, develop consensus and recommendations for improving FOIA administration and proactive disclosures, and solicit public comments. The meeting will focus on prioritizing the FOIA issues on which the Committee will focus. The media is welcome to attend.

WHO: Speakers will include David Ferriero, Archivist of the United States, Miriam Nisbet, FOIA Advisory Committee Chair, and FOIA Advisory Committee Members.

NOTES: This meeting is open to the public. Due to space limitations and access procedures, individuals planning to attend the meeting are required to register through Eventbrite. Attendees are required to show one form of Government-issued photo identification (e.g. driver’s license) to gain admittance. For questions about accessibility or to request accommodations, please contact the Office of Government Information Services (OGIS) staff at 202-741-5770 or ogis@nara.gov.

FOIA Advisory Committee to Meet June 24

The FOIA Advisory Committee will be called to order on June 24, 2014. (NARA Identifier 6011299)

The FOIA Advisory Committee will be called to order on June 24, 2014. (NARA Identifier 6011299)

The first meeting of the Freedom of Information Act (FOIA) Advisory Committee is scheduled for June 24, 2014 from 10 a.m. to 1 p.m. at the National Archives building in Washington, D.C. The meeting will be open to the public and we will provide registration information in the coming weeks.

The FOIA Advisory Committee was established in May 2014 under the second Open Government National Action Plan (NAP). The Committee’s goal is to advise on ways to improve the administration of FOIA. The Committee will study the current FOIA landscape across the Executive Branch and may recommend legislative action, policy changes or executive action, among other matters.

Archivist of the United States David Ferriero appointed the 20 members of the Committee last month. There are 10 members from within government and 10 non-governmental members who have considerable FOIA expertise and who were selected to achieve a balanced representation. Committee members are appointed to serve a two-year term. OGIS Director Miriam Nisbet will chair the Committee. ​

The​ ​FOIA Advisory Committee will meet up to four times per year. Stay tuned for more information about the Committee’s first meeting — we hope to see you there!