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Change is in the Air

Here at OGIS, we have been contemplating more than just the autumn leaves (NARA identifier 6000604)

Here at OGIS, we have been contemplating more than just the autumn leaves (NARA identifier 6000604)

If you keep an eye on OGIS, you know that we are celebrating some exciting changes and welcoming new staff. Beyond those changes, we are also saying goodbye to Miriam Nisbet, OGIS’s first Director, who retired at the end of November.

Miriam herself has written about her career in fostering access to information, and we will be forever grateful for her work establishing OGIS in its first five years. On a more personal note, we will miss her thoughtful, insightful leadership as we navigate OGIS’s path forward.

Change can be challenging, but also exciting. NARA will be hiring a new OGIS Director in the coming months, and we look forward to new leadership and the opportunities and challenges the future will bring.

OGIS Launches First Agency Assessment

We’re pleased to announce completion of our first assessment of an agency FOIA program, officially launching the expansion of our review program and helping us better fulfill our statutory mandate to review agency FOIA policies, procedures and compliance. 5 U.S.C. §§ 552 (h)(2)(A) and (B).

We’ll have a look at individual agency FOIA programs as we grow the OGIS review program. (NARA Identifier 543740)

We’ll have a look at individual agency FOIA programs as we grow the OGIS review program. (NARA Identifier 543740)

The National Archives and Records Administration’s own Office of General Counsel agreed to be the subject of our first assessment. The Office’s FOIA team, which processes about 300 FOIA requests a year for operational records created or received in carrying out the Archives’ mission and responsibility, spent hours answering our questions, talking with us about how it administers FOIA, and opening its FOIA files for us to examine. The result is a 10-page report  documenting our observations, including best practices, and our recommendations. At the end is an at-a-glance summary of our recommendations that we hope provides a check-list, of sorts, of steps to be taken to ensure FOIA works better for all—agency and requester.

As with our mediation services, we conduct our assessments of agency FOIA programs as an advocate for the FOIA process with a focus on impartiality and fairness. We’re an ombudsman’s office and as such, advocate for neither the agency nor the requester, but for the FOIA process to work as intended.

We began noodling the framework for OGIS assessments in 2012 when we met with our Archives colleagues at the Information Security Oversight Office, which evaluates the effectiveness of the security classification programs established by Government and industry to protect national security information. We left that meeting with a clear sense that the FOIA statute itself should guide us.

A line-by-line page-by-page review of the statute (a process familiar to thousands of FOIA professionals!) resulted in an outline for our assessment program. We also consulted other FOIA resources, including, but not limited to, the Guide to the Freedom of Information Act and guidance published by the Department of Justice’s Office of Information Policy; the Office of Management and Budget Guidelines for Fees; and OGIS’s observations and best practices that we developed over the last five years.

Armed with what we call the elements of an effective FOIA program, we created an assessment methodology that includes an online survey for FOIA professionals. The questions are designed to provide insight into a FOIA program without duplicating questions already asked in Annual FOIA and Chief FOIA Officer reports.

We assess the survey results along with the agency’s FOIA regulation, website, training materials and other written materials. We also review the agency’s FOIA litigation and look at resources such as Annual FOIA and Chief FOIA Officer reports and reports from open government groups. Finally, we visit the FOIA program to interview agency FOIA professionals and review FOIA request files before writing a final report. The report is not designed to be a “gotcha” document or to provide a grade, but rather to provide a thoughtful analysis of what works and what doesn’t along with recommendations for improvement.

Next, we’ll assess the Archives’ Special Access and FOIA Program, which processes FOIA requests for archival federal records in the Washington, D.C., area. In 2015, we plan to assess FOIA programs at the Department of Education and at components of the Department of Homeland Security.

In December, two new staff members will join the OGIS team allowing us to regularly assess FOIA programs. As we ramp up our agency assessments, we’ll continue the review work that we already do, including reviewing and commenting on proposed agency FOIA regulations; reviewing and suggesting improvements to agency FOIA materials; and working with agencies when we observe policies and procedures that appear to be inconsistent with FOIA law or policy.

We’d love to hear your thoughts about our nascent agency assessment program.

FOIAonline Celebrates its Second Birthday

FOIAonline didn't celebrate its birthday with a toga party as President Franklin D. Roosevelt did in 1934, but FOIAonline partners from 11 Federal agencies did enjoy cupcakes. (NARA Identifier 6728531)

FOIAonline didn’t celebrate its birthday with a toga party as President Franklin D. Roosevelt did in 1934, but FOIAonline partners from 11 Federal agencies did enjoy cupcakes. (NARA Identifier 6728531)

The same week we at OGIS celebrated our 5th birthday, we celebrated another important birthday—that of FOIAonline.

An online portal aimed at expanding public access to information requested under FOIA, FOIAonline went live two years ago when five Federal agencies, including the Office of General Counsel at our parent agency, the National Archives and Records Administration, began using the system.

Eleven agencies now use FOIAonline, including Customs and Border Protection (CBP) and the Department of Navy. U.S. Citizenship and Immigration Services (USCIS), which receives about 600 requests a day (!), recently began accepting requests that do not contain personally identifiable information.

When FOIAonline launched on October 1, 2012, about 1,600 agency FOIA professionals were registered users. Two years later, more than 4,100 FOIA professionals and 170,000 requesters are registered users. In those two years, FOIA professionals processed more than 200,000 FOIA requests and posted nearly 400,000 records.

For agencies, FOIAonline provides a secure website to receive and process requests, post responses, generate metrics, manage records electronically and create management reports. Requesters can use FOIAonline to submit FOIA requests, track their progress, communicate with the processing agency, search other requests, access previously released responsive documents and file appeals with participating agencies.

OGIS founding Director Miriam Nisbet’s involvement in the project dates to its very early days. In 2010, the Environmental Protection Agency (EPA) began looking at the feasibility of creating a FOIA portal using the framework of Regulations.gov, the Federal rulemaking portal that allows people to comment on Federal regulations and other agency regulatory actions. By leveraging the infrastructure of Regulations.gov, FOIAonline avoided many start-up costs, resulting in a total of $1.3 million spent to launch the system.

During the observance of OGIS’s first five years, some asked if OGIS’s involvement with FOIAonline was a productive use of OGIS resources. “We heard again and again that members of the FOIA community wanted an inexpensive shared service to make it easier to communicate with requesters and facilitate requests,” Director Nisbet said. “FOIAOnline, which is built on an existing platform and creates a central clearinghouse for released documents, addressed these needs in a number of ways.”

Krista Boyd, minority counsel to the House Oversight and Government Reform Committee, noted that OGIS’s involvement helped FOIAonline succeed.

“I think having OGIS involved gave it the gravitas it needed to take off,” Ms. Boyd said.

Celebrating OGIS’s First Five Years

Sunshine in Government Initiative Coordinator Rick Blum presents OGIS founding Director Miriam Nisbet with the Sunshine in Government Award. (Photo by Carrie McGuire)

Sunshine in Government Initiative Coordinator Rick Blum presents OGIS founding Director Miriam Nisbet with the Sunshine in Government Award. (Photo by Carrie McGuire)

As in past years, we at the Office of Government Information Services (OGIS) were too busy to celebrate our birthday on September 9. Instead, we marked our 5th year on October 31 with representatives from the requester and agency communities as well as House and Senate staff of the committees that helped create and now oversee OGIS.

Dubbed “OGIS at Five,” the half-day program focused on OGIS’s accomplishments in the last five years—and where the Office is headed in the next five years. And the Sunshine in Government Initiative (SGI), a coalition of media groups committed to promoting policies that ensure government is accessible, accountable and open, presented OGIS founding Director Miriam Nisbet with the Sunshine in Government Award. (More on that later.)

Discussion ranged from OGIS’s effect on the FOIA process to the balance between OGIS’s two missions of providing mediation services and reviewing agency policies, procedures and compliance to some requesters’ frustrations that OGIS does not have power to order agencies to release records.

One of our biggest challenges in our first five years was balancing our two missions, said Director Nisbet, who walked into an empty office on September 9, 2009, with no staff and requests for assistance already on her desk. “We really had to deal with those requests and deal with them quickly,” she said. Those requests dictated that OGIS focus on providing mediation services to both requesters and agencies. Mediation is “not ever going to take the place of litigation, but mediation is better than battling things out in the courtroom,” she said.

Bill Holzerland, director of the Division of Information Disclosure at the Food and Drug Administration’s Center for Devices and Radiological Health, has worked with OGIS from positions at three different agencies. Through our Dispute Resolution Skills training, OGIS has helped agencies overcome “the fear of engaging in conversation with the requester,” he said. “Engaging in dialogue in good faith with the requester certainly solves problems. At the minimum, it establishes a track record at the agency of working with the requester.”

Hundreds of FOIA professionals from across the government have taken our training since we began offering it in 2010.

The tension between providing mediation services and reviewing agency FOIA policies, procedures and compliance is one that Senator Patrick Leahy of Vermont was well aware of when Congress created OGIS in the 2007 amendments to FOIA, said April Carson, majority counsel to the Senate Judiciary Committee, which Sen. Leahy leads.

“The work OGIS has done has set a benchmark,” said Ms. Carson.

Krista Boyd, minority counsel to the House Oversight and Government Reform Committee, said “there is such trust in [OGIS’s] ability to carry out FOIA reforms effectively,” in part because of OGIS’s independent voice in advocating for the FOIA process. OGIS, she said, “gives both agencies and requesters a place to go to keep them from jumping into litigation.”

We at OGIS recently addressed the tension between the two missions by creating two teams, one overseeing mediation services and another overseeing review, a move that Ms. Boyd embraces. “I think the shift in staffing is an excellent idea,” she said. (Stay tuned to the FOIA Ombudsman in the coming weeks for more about the expansion of our review program to include assessments of agency FOIA programs.)

Lauren Barlow, counsel to Senator John Cornyn of Texas, who teamed with Sen. Leahy to help create OGIS, said the Office’s success is as a catalyst to “smooth the FOIA process from beginning to end” for both requesters and agencies.

Brad Heath, a reporter with USAToday, said that he had “tremendously high expectations” for OGIS, but said in his experience “the actual mediation process hasn’t led to the one thing I want, which is records.” As an ombudsman, OGIS cannot compel agencies to release documents, enforce FOIA or make determinations or dictate resolutions to disputes.

“It is good that when you deal with OGIS, you do get a more fulsome explanation of the process,” Mr. Heath said.

Nate Jones, FOIA coordinator for the National Security Archive, an independent non-governmental research institute, said he expected more review of agency FOIA compliance in OGIS’s first five years. At the same time, he said, one cannot ignore how “tremendously useful OGIS has been.”

Where will OGIS be in five years?

“I hope in five years OGIS is out of business or severely bored,” Mr. Holzerland said. (We’ve often said that we’d love for FOIA to be working so well for both FOIA professionals and requesters that there’s no need for OGIS.)

Absent from the “OGIS at Five” program was the surprise presentation of SGI’s Sunshine in Government Award, which SGI usually presents during Sunshine Week. The coalition decided to fast-track the award for Director Nisbet upon hearing of her retirement at the end of November.

“Miriam has accomplished so much. She took a 104-word mandate that Congress wrote into the federal FOIA and brought it to life. She conducted the office in a non-lawyerly, public-facing manner. She helped hundreds of requesters understand the responses they were getting from agencies, or pushed agencies to respond when they couldn’t or simply refused,” said Mr. Blum. (Read his full comments here.)

OpenTheGovernment.org and the Newseum Institute sponsored the event at the Newseum.

10/21 FOIA Advisory Committee Meeting Wrap-Up

Image - WPA Library bookmobile, NARA Identifier: 195912

Rethinking FOIA takes careful study. (NARA identifier 195912)

On October 21, 2014, the FOIA Advisory Committee met to continue its efforts to examine and address FOIA oversight and accountability, proactive disclosure, and FOIA fees.

Archivist of the U.S. David S. Ferriero opened the meeting by noting that the momentum behind government openness and transparency is growing around the globe. In September, President Obama spoke at the Open Government Partnership meeting at the United Nations about the importance of Open Government and U.S efforts. President Obama referenced the work of the FOIA Advisory Committee, citing efforts to modernize FOIA so that it’s easier to administer and use.

Mr. Ferriero also acknowledged Office of Government Information Services (OGIS) Director Miriam Nisbet who will retire from Federal Service at the end of the year.

To ensure that the Committee’s Oversight and Accountability, Proactive Disclosures, and FOIA Fees subcommittees have a clear path in the coming months to recommend improvement to FOIA, the Committee dedicated the majority of the meeting to status reports from the subcommittees’ Co-Chairs.

Oversight and Accountability Subcommittee Co-Chairs Martin Michalosky and Mark S. Zaid reported that the subcommittee agreed to focus its efforts on

  • identifying current authorities for oversight and past actions (program reviews, audits, reports, inspections, etc.) that have been completed by open government groups and others over the past 10 years;
  • determining opportunities for additional oversight;
  • assessing the implementation of the FOIA Public Liaison role and determining opportunities for improvement;
  • evaluating past litigation review efforts; and
  • determining opportunities for further oversight.

Mr. Michalosky noted that the subcommittee discussed oversight practices that work well within agencies, including self-policing, internal audits, as well as what agencies do across the board. Mr. Zaid observed that reports, studies, hearings, and investigations regarding FOIA oversight are not available in one central place and suggested creating such a collection online.

Proactive Disclosures Subcommittee Co-Chair David S. Reed presented an overview of the FOIA’s proactive disclosure requirements and the Department of Justice’s guidance encouraging agencies to proactively make information available to the public. Mr. Reed touched on the DATA Act and the benefits of standardizing proactive disclosures. Mr. Reed and Co-Chair Eric Gillespie explained the challenge the subcommittee faces in breaking down Federal agencies’ FOIA request by record type, request type, or requester type and in obtaining FOIA logs with sufficient descriptions to get the data needed for analysis. Mr. Reed and Mr. Gillespie asked whether there are agencies represented on the Committee that would be willing to pilot a project with the subcommittee on this issue.

FOIA Fees Subcommittee Co-Chairs James Hogan and Ginger McCall noted that the subcommittee had explored how Federal agencies and FOIA requesters perceive FOIA fees, how data could help define and analyze the issues, and how other countries handle open access law fees. Issues identified by the subcommittee include

  • lack of understanding among FOIA requesters and Federal agencies regarding fee-related FOIA definitions and requirements;
  • the lack of consistency in fee-related decisions; and
  • how fees are used in voluminous and vague requests.

The Committee has set an ambitious agenda. We look forward to updating you on the Committee’s work. Please visit the FOIA Advisory Committee’s webpage and subpages at https://ogis.archives.gov/foia-advisory-committee.htm for information about the Committee and how you can get involved. Do you have ideas or opinions you’d like to share? We’d love to hear from you!