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You Can Help Keep a FOIA Request Out of Court

Judges have a critical role to play in FOIA, but we should avoid clogging up the courts with FOIA cases where we can. (NARA Identifier 6010581)

Judges have a critical role to play in FOIA, but we should avoid clogging up the courts with FOIA cases where we can. (NARA Identifier 6010581)

Since OGIS opened in 2009, we’ve worked to improve the Freedom of Information Act (FOIA) process by providing mediation services and training to help agency FOIA professionals develop skills to communicate productively with requesters. We frequently see our efforts paying off as the FOIA culture shifts from being contentious and litigious to communicative and collaborative; but, we also know we have more work to do.

In December the FOIA Project, based at the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, issued a report showing that the number of FOIA lawsuits filed in Fiscal Year (FY) 2014 rose to 422, a 13-percent increase from FY 2013 when 372 FOIA lawsuits were filed and the highest number since 2001.

When talking about the number of FOIA lawsuits filed in a year, it‘s useful to put it into context of the number of FOIA requests filed each year. For each year between 2010 and 2014, the percentage of FOIA lawsuits filed compared to the number of requests overall held steady: about one half of one percent of FOIA requests ended in court. (Of course, not all lawsuits filed in a particular year are the result of requests filed that same year.)

FOIA_suit)stats

Historical data are also important for context. The number of FOIA lawsuits filed each year has actually dropped fairly significantly over the last few decades. A 1987 Administrative Conference of the United States (ACUS) Statement on Resolution of Freedom of Information Act Disputes noted that requesters filed about 500 new FOIA cases per year.

The flip side of the statistic regarding the number of lawsuits filed is the number of requests that are processed without a lawsuit. Often the process works—though the lack of a lawsuit does not mean that the process worked perfectly, or even worked at all. The reasons that FOIA requesters do not file lawsuits are as varied as the reasons that requesters do file FOIA lawsuits.

Why are FOIA Suits Filed?

Under FOIA, requesters can file a suit and ask for a judge to rule on whether a federal agency can withhold material under the law. This arrangement gives the judicial branch a critical role in the process: Courts interpret the statute and provide some oversight to the process.

A 2014 ACUS report, Resolving FOIA Disputes Through Targeted  ADR Strategies,  found “wide variation in the form and substance of FOIA disputes between requesters and agencies, in the motivation, resources, and sophistication of  requesters, and in the missions and the level of interest in agency records.” There is no one path that leads to a FOIA suit: some requesters work with agencies for years before they decide to file a lawsuit; others routinely file on the 21st day; still others file lawsuits because they believe – fairly or unfairly – that it is the only way to get an agency to pay attention to a request.

What Can I Do to Avoid Becoming Another Statistic (aka, a lawsuit)?

The number of FOIA lawsuits filed is unlikely to ever fall to zero, but there are common-sense steps that agencies can take that will help make sure lawsuits are more rare.

In 2012, we posted a list of tips for “How to Invite a Lawsuit.” Avoiding these “tips” by clearly explaining exemptions and decisions to withhold material to a requester, providing an estimated date of completion, and communicating with requesters can help avoid lawsuits. We at OGIS also can help resolve disputes by facilitating clear communications between agencies and requesters and paving a potential path forward.

The bottom line is that good customer service and the use of dispute resolution skills may not stop all FOIA lawsuits but  will help keep some FOIA disputes out of the courts. Additionally, good customer service and the use of dispute resolution skills make the FOIA process more understandable and less contentious for everyone.

How Can We Help?

To use our mediation services, please contact us at ogis@nara.gov. We also provide training for agency FOIA professionals in dispute resolution skills; learn more about our training here: https://ogis.archives.gov/news-and-events/training-opportunities/dispute-resolution-skills-training.htm.

Meet Members of the FOIA Advisory Committee

Federal FOIA Advisory Committee Welcomes Sunshine Week

Members of the FOIA Advisory Committee join in wishing Sunshine Week a happy birthday! (NARA Identifier 6728621)

Members of the FOIA Advisory Committee join in wishing Sunshine Week a happy birthday! (NARA Identifier 6728621)

The Federal FOIA Advisory Committee is pleased to issue a joint statement, below, honoring the 10th anniversary of Sunshine Week.

As regular readers of our blog know, the FOIA Advisory Committee is comprised of FOIA experts from inside and outside of government. Committee members are working collaboratively to address major issues in the FOIA process and develop consensus recommendations.

The Committee holds a public meeting once per quarter (mark your calendars for the next meeting on Tuesday, April 21). Check out the Committee’s website for the minutes and a link to videos of past meetings, and for information on how you can provide input and feedback.

Joint Statement of the Freedom of Information (FOIA) Advisory Committee

 

The Federal FOIA Advisory Committee joins FOIA professionals, open government advocates and journalists across the country in celebrating the 10th anniversary of Sunshine Week.

The members of the FOIA Advisory Committee represent diverse views from inside and outside government, and we share the goal of improving FOIA by fostering dialogue between and among the Federal government and the requester community; receiving public comments; and developing recommendations for refining and enhancing FOIA administration.

Sunshine Week, an initiative launched in 2005 by the American Society of News Editors, similarly brings together Federal, state and local agencies, and the public to focus on openness in government operations. Over the last decade, government agencies, media outlets, open government groups, libraries, and nonprofits around the country have embraced this celebration.

The FOIA Advisory Committee is pleased to join the effort to improve FOIA as it works on three key issues central to improving FOIA: oversight and accountability of agency FOIA programs, FOIA fees, and proactive disclosures. We look forward to continuing our work together to explore these issues over the next year and beyond, and welcome input from the public at any time. For more information, please visit https://ogis.archives.gov/foia-advisory-committee.htm.

Show Open Government Some Love this Sunshine Week

 

Join NARA in showing open government some love this Sunshine Week!

Join NARA in showing open government some love this Sunshine Week!

Previously we let you know about some of the ways OGIS and other federal agencies are celebrating the Freedom of Information Act (FOIA) during Sunshine Week. Today, we’d  like to tell you about how you can contribute to a special Sunshine Week project by our parent agency, the National Archives and Records Administration (NARA).

As you may know, NARA created a tool that allows the public to help make historical documents more accessible and improve search results. By using the Citizen Archivist Dashboard, you can tag and transcribe some of the millions of digitized pages of records in the National Archives Catalog.

Of the groups of records that NARA is targeting for transcription this week, people in the FOIA world might be particularly interested in helping transcribe love letters from Lyndon Baines Johnson to “Lady Bird” Johnson. As the 36th President of the United Station, LBJ signed the original FOIA bill in 1966. It is well-known, however, that he did not love the bill. The series of letters might help the FOIA community see a different side of LBJ.

If you decide to give the Citizen Dashboard a try, please use the hashtag #1000pages and tweet us @USNatArchives to let us know what you’re working on and what you find in the records!

Mark Your Calendars: DHS Requester Roundtable Scheduled for March 25

The Department of Homeland Security (DHS) recently announced that on Wednesday, March 25 from 2 to 3:00 pm (Eastern), DHS Freedom of Information Act (FOIA) staff will hold a Requester Roundtable teleconference. This is a fantastic opportunity for members of the requester community to learn more about the DHS process and share their ideas for improving communication.

DHS’ announcement is below. For more information, or to register for the event, email foia@hq.dhs.gov

DHS Stakeholder Engagement v.2