The FOIA Ombudsman

The search for immigration records can be confusing without the right tools. (ARC Identifier 6011170)

Immigration records offer a wealth of valuable information for immigrants, genealogists, journalists, academic researchers and others. However, several agencies maintain immigration records, so finding them can challenge even the savviest FOIA requester.

Join agency representatives and requesters for an OGIS Forum on immigration records on Wednesday, May 23, from 10:00 a.m. to noon. This event, which will take place at the National Archives building at 7^th Street and Constitution Avenue NW, will focus on these questions:

• Where should I go to find different kinds of immigration records?
• Which agency maintains which records?
• How do agencies locate immigration records?
• Is there a way to streamline access to immigration records?

To RSVP for this event, please email ogis@nara.gov. You may also join the OGIS Forum by phone; please RSVP and we will send the teleconference information.

The following guest post is from Ryan Alfred, co-founder and president of BrightScope, a financial data and analytics company, launched in January 2009. Mr. Alfred spoke at the March 30, 2012 Smart Disclosure summit, hosted by the National Archives and the White House, about his experiences using FOIA. By including his post on the FOIA Ombudsman, OGIS is not endorsing BrightScope or its products.

Documents obtained under FOIA helped grow a company that brings transparency to the corporate retirement plan marketplace. This 1973 photo, from a West Palm Beach retirement community, is in the National Archives. (ARC Identifier 548567)

Back in the summer of 2008, I started a company with my brother Mike Alfred and our colleague Dan Weeks. Though we were few, BrightScope’s mission was big: helping millions of American workers achieve a dignified retirement by bringing more transparency to the corporate 401k plan marketplace. To accomplish this big goal, we needed high-quality data on 401k plans. The Department of Labor (DOL) regulates the retirement plan marketplace, so we thought that visiting DOL was the right place to start.

We booked a flight to Washington, DC, hoping to find the data we needed.  Our first stop in DC: the Public Disclosure Room at DOL, where we quickly discovered that the disclosure room computer did not contain the data we were seeking. Fortunately, the DOL staffer working in the disclosure room that day was kind enough to allow us to look over his shoulder at other public files in DOL databases. That olive branch led to a major discovery: a subset of data about 401k plans that was both public and very high value, but that the DOL had not made available on its website or via the disclosure room computer. We printed a few of these reports—audits of retirement plans with more than 100 participants—at 5 cents a page and flew back to San Diego.

When we dug in to the data, we knew we were on to something. This led to our very first FOIA request seeking access to a list of several hundred retirement plans for which we also requested the financial audit statements we found during our visit.  We’d read DOL’s FOIA web site and Googled “FOIA,” but none of us had ever submitted a FOIA request.  This request would lead to at least 50 additional FOIA requests to the DOL over the next two years. Our requests became larger and larger and at one point, the requests were considered the “most onerous” requests ever placed on the Department.

The data we were requesting never had been requested in bulk and the only way to release it under FOIA was to print out the documents after first reviewing them for sensitive information. This was a time-intensive task and meant that a single DOL staffer would spend countless hours manually reviewing and printing financial statements, a job none of us envied. This created some friction between BrightScope and DOL. We felt our requests for public documents were fair and that our mission was aligned with that of the Department, but we were frustrated by what we perceived to be slow response times and an unwillingness to work together. For example, several times the DOL officially acknowledged our FOIA requests exactly 20 business days after their submission, which is the statutory deadline for a substantive response.

However, over the course of the last three years, the entire relationship has changed. We traveled to DC several times to meet DOL officials in person, communicating our vision and goals and learning as much as we could about the FOIA process. We now view our relationship with DOL as a partnership. DOL has also made some fundamental changes to the way that it provides data. First and foremost, as of last year, the Department makes much of the data available online, eliminating the need for our team to submit FOIA requests. When we want more data, we can simply obtain it ourselves rather than request it through FOIA. Now when we reach out to DOL or vice versa, it’s to provide feedback or to discuss new initiatives, rather than to complain about issues with data released under FOIA or to request additional data.

We’ve also been impressed with how the staff members at all levels of DOL have made themselves accessible to answer our questions and listen to our feedback. We’ve sought to educate ourselves on the constraints DOL faces so that we can find creative ways to obtain the data we seek with a lower burden on Department staff. At times, we’ve also made our data available to DOL staff upon request and sought to educate our teams about how to work most effectively with our counterparts in government. The end result of the last three years of our collaboration with DOL is better transparency of retirement plans and a growing private company of close to 50 employees and millions of dollars in revenue—all with roots in a few thousand DOL documents. The FOIA process was critical to our company’s founding and we owe a debt of gratitude to those in DOL who have shown tremendous patience in working with us over the past three and a half years.

The following post is from OGIS Director Miriam Nisbet:

The Freedom of Information Act directs OGIS to recommend “policy changes to Congress and the President to improve the administration” of FOIA. Since late 2009 when OGIS opened as part of the National Archives and Records Administration, the Office has looked for and shared ways to improve FOIA.

Creativity sparks ideas for improvements. Poster from the Office for Emergency Management, 1943-45.

Last week, OGIS shared with Congress and the public five policy recommendations, some of which relate to improving how OGIS carries out its work offering mediation services and reviewing FOIA policies, procedures and compliance.  Other recommendations relate to more systemic issues such as coordinating multi-agency requests and improving public access through a one-stop FOIA hub. (Because OGIS is part of the National Archives, an executive branch agency, any recommendations to Congress must go through an inter-agency review process coordinated by the Office of Management and Budget.)  

These recent policy recommendations are among many observations OGIS has had since 2009 to improve FOIA. Most of OGIS’s recommendations don’t necessarily rise to the level of changing law or policy and instead are best practices or less formal suggestions on ways folks can try to make FOIA work better. For example, OGIS has focused several suggested improvements around the importance of good communication after seeing a pattern of difficulties between requesters and agencies and within agencies themselves. OGIS also has suggested dozens of improvements for agencies in processing FOIA requests and for the public in requesting records.

While Congress regularly fine-tunes FOIA— about every 10 years since it was enacted in 1966 — these simpler changes also can contribute to improving the FOIA landscape. In addition to OGIS’s suggested improvements that span all aspects of the FOIA process, the Department of Justice’s Office of Information Policy also issues regular guidance on FOIA law and policy that helps to make a better FOIA.

Because all types of recommended FOIA improvements are important, OGIS began compiling its working list of suggestions on its website. Improving FOIA is the home for all of OGIS’s recommendations — to help FOIA function well and as intended as an important avenue for access to government information.

Our work as the FOIA Ombudsman certainly gives us an important vantage point to create this list, but observations from the FOIA community will help build it. We hope to hear from requesters, agency FOIA professionals and anyone else who might have suggestions on how to improve the FOIA experience. Email us at improvefoia@nara.gov.

Want to improve FOIA record searches? Start with good communications. (ARC Identifier 2493214)

Have you ever wondered why it takes so long for an agency to find responsive records after you make a FOIA request? After all, isn’t there a “Government Google” that allows an agency to search its records with a few keystrokes? Or, have you received a FOIA fee estimate in the thousands of dollars because you didn’t have enough information to narrow the scope of your request?

If you are in the Washington, D.C., area and are curious about record searches, please join us for this month’s FOIA Requester Roundtable, co-hosted by the Department of Justice’s Office for Information Policy (OIP). This discussion between requesters and agency FOIA personnel will focus on the challenges facing agency FOIA professionals  in searching for records and ways that requesters and agencies can work together to narrow the scope of FOIA requests.

The Roundtable is from 10 a.m. to noon Wednesday, April 25, 2012, at OIP’s offices, 1425 New York Avenue, NW, Suite 11050, Washington, D.C. You can get to OIP’s offices on Metro’s Orange or Blue line (McPherson Square stop) or Red line (Metro Center stop).

If you are interested in attending, please e-mail your name and phone number to Bertina Adams at DOJ.OIP.FOIA@usdoj.gov. We hope to see you there!

OGIS bridges FOIA requesters & Federal agencies. Rogue River (Oregon) Bridge, National Archives, ARC Identifier 520151

Ever had one of those weeks when your car has a flat, the dog escapes and you get a call from your bank because your credit card number was stolen? We’ve had a couple weeks like that at OGIS regarding publishing online our 2012 report on our second full year. But never mind all that …

We’re thrilled that Building a Bridge Between FOIA Requesters & Federal Agencies went up on the OGIS web site earlier this month. You can view it three ways: in html, in a PDF and in a page-turn PDF.

The report tells the story of OGIS’s second year, from providing mediation services to requesters and agencies in hundreds of cases, to training agency FOIA professionals in dispute resolution skills, to reviewing agency FOIA policies, procedures and compliance. Customer service is a theme running throughout the report. Since opening in September 2009, we’ve observed the importance of good customer service in resolving—and preventing—FOIA disputes between agencies and requesters. As OGIS Director Miriam Nisbet says in the report’s Message from the Director, customer service also is a thread we at OGIS weave into our daily work.

You also may be interested in a letter from Director Nisbet to Senators Patrick Leahy and Chuck Grassley, following up on the March 13^th Senate Judiciary Committee hearing on FOIA. During the hearing, Chairman Leahy and Ranking Member Grassley asked about the status of OGIS’s recommendations for improving the administration of FOIA, which is part of OGIS’s statutory mission. As the letter explains, OGIS submitted to OMB last year recommendations based on OGIS’s first year.  As a result of the interagency review process, OGIS and OMB agreed that OGIS should pursue administrative solutions “before further considering whether a legislative proposal would be necessary or appropriate.” As the letter and our report detail, OGIS also is working on other ways to improve FOIA administration.

 Happy reading! And, as always, let us know what you think.

“Scoping” a FOIA request can be challenging. Officer at periscope in control room of submarine, ca. 1942 (ARC Identifier 520588).

Describing the scope of a FOIA request — and on the agency’s side, interpreting the scope of that request — often feels like more art than science. Requesters naturally describe requests in expansive terms to be sure that they don’t exclude potentially valuable information. On the other hand, agency FOIA staffers often feel like they should add “mind reader” to their list of job responsibilities when faced with the task of determining the scope of an unclear request. Agency FOIA professionals may face another perplexing task when scoping potentially responsive documents, especially if the scope of a request is unclear.

We recently received a request for assistance from a FOIA requester who disputed an agency’s response to his FOIA request. When he received his requested records, he found pages (and in some cases, individual paragraphs) redacted and marked “BTS.” When he appealed, the agency informed him that “BTS” stood for “beyond the scope” — the agency had determined that the redacted material did not fit within the scope of his request, and the agency “scoped out” that material.

Determining the scope of a request and scoping out potentially unresponsive documents are two tasks that FOIA professionals perform regularly. In performing both tasks, they are guided by the plain language of the request. FOIA professionals determine the scope of a request before they search for responsive records so that the search will be targeted to retrieve any responsive material. Then after a search has located responsive material, FOIA professionals will scope out unresponsive documents to ensure that a requester receives only the information requested. Both tasks should hasten the processing time and limit the amount of processing fees because they focus the analysis on identifying only the material that is truly responsive to a request.

The Department of Justice Office of Information Policy (OIP) issued guidance on scoping potentially responsive material in 1995. In its guidance, OIP acknowledges that many agencies combine subjects in a single file (or even document) as a matter of administrative convenience. This can lead an agency to assume that it can safely exclude (or scope out) topics from the responsive material that don’t clearly fall within the scope of a FOIA request. However, OIP gives an agency considering scoping materials out of a request lots to consider:

• Information should not be determined to be beyond the scope of a request on less than a page-by-page basis.
• While entire pages can be scoped out as unresponsive to a request, an agency must have a firm basis for reaching that conclusion.
• An agency should review any potentially scoped out material for FOIA exemption applicability. If no exemptions apply, there is no good reason for those pages to be scoped out.

Clearly, the road to scoping out documents is fraught with peril. So what is an agency FOIA who is scoping responsive material to do? Happily, OIP’s guidance addresses this as well. It says, “…the requester should be fully informed of any ‘scoping’ determination in all instances and should be given an opportunity to question or disagree with it…communication with the individual requester is essential in addressing any scope question.” In other words, agencies should consider scoping a request to be a great reason to pick up the phone and talk to requesters.

The road from positions to interests can be hazardous, but it is worth the trip. Road sign warning of the danger from bears, 1961 (ARC Identifier 286014)

In last week’s post we discussed the difference between positions and interests. In brief, positions are what an angry person presents during a confrontation; interests are the secret, unmet needs that anyone in a dispute may be reluctant to share. We also learned that the only way to move toward a resolution is to discuss those hidden interests; arguing positions will inevitably lead to butting heads. So how does one help an angry position-based person focus on underlying interests?

Here at OGIS we rely on a set of communications skills identified by our friend Jean Whyte, director of the National Archives’ alternative dispute resolution program, as we attempt to move our customers from positions to interests. While not every situation calls for each of these techniques, they’re good to have in your toolbox.

Cultivate curiosity. When you are curious, you tend to let go of presuppositions about the issue or people in dispute. Stay calm, and express that calm through a low, even, relaxed tone of voice. Don’t be defensive, even if the other person is on the attack. Be hard on the problem at hand rather than the person in conflict (no matter how big a “problem” that person might seem). Cultivating curiosity and expressing that curiosity through kind detachment helps an angry person relax. It also builds trust — the other person will be more willing to admit his or her interests when you use this technique.

Ask open questions. Do you know what an open question is? Wait, let me ask that a different way. Could you tell me what you know about open questions? A closed-ended question (like my first question) draws from a defined list of answers, such as “yes” or “no.” An open question stimulates conversation by inviting a person to share his or her thoughts and experiences. Open questions are like the gas pedal that quickly drives a position-based dispute toward a discussion of underlying interests.

Practice active listening. In order for an angry person to trust you enough to share his or her interests, you first need to show that you are a good listener. “Active listening” doesn’t refer to any one behavior, but it includes techniques like summarizing what you hear the other person say, engaging non-verbally through eye contact and nods, and checking out your assumptions with the speaker. Active listening does not include interrupting, finishing the other person’s sentence, or acting distracted or bored. Active listening also doesn’t mean total silence on the part of the listener — a silent listener may be completely misunderstanding what he or she is hearing.

Try reframing “hot” phrases. An angry person may use highly emotional language to express his or her positions. You may be able to rephrase a statement in a way that makes it neutral while acknowledging the person’s emotions. For example, if someone says “Nobody ever answers their phone in the federal government! Federal workers do nothing all day!” you might reframe that statement as “I understand that you are angry, and that you are trying to connect with someone who can assist you. You have reached me now, and I will do all I can to help.” Reframing is extremely difficult, but also very effective.

Focus on the future, not the past. As you begin to move the conversation away from positions and toward interests, help the (formerly) angry person focus on the outcome that he or she desires rather than the events in the past that created the dispute. It’s fine to be pretty explicit with this technique, to say things like “that’s what happened in the past. Let’s focus instead on what you would like to see happen in the future.”

We wish you happy travels as you negotiate the road between positions and interests. We’d love to hear your tips for productively dealing with disputes.

Caption: Good communications skills can help quench combustive conversations. THE BEST WAY TO FIGHT FIRE IS TO PREVENT IT. FIRE SLOGAN CONTEST. 5TH WEEK'S WINNER - EVERETT A. COLLIER., 1941 – 1945 (ARC Identifier 515575)

As part of providing mediation services to resolve FOIA disputes, we OGIS staffers regularly have conversations that can be characterized as “difficult.” We listen to FOIA requesters who are furious about delays or denials. We also hear from agency FOIA professionals who are defensive about agency practices or frustrated by overly persistent requesters.

Thanks to our experience having difficult conversations, we’ve developed an approach to communicating with angry people. We’re happy to share it.

First, it’s important to remember that when you are trying to communicate with someone who is angry, reasoned discussion will not work. Anger activates the fight-or-flight response, a complicated reaction that involves the brain and hormones. This heightened state clouds judgment and impedes rational thought.

Let’s consider an example, taken from an actual OGIS case. A professor who writes a popular newsletter requested records but did not request a particular fee category. The FOIA processer, thinking that he was doing the requester a favor, placed him in the “media” fee category; requesters in this fee category owe no search or review fees. After learning of his fee category, the requester called the agency’s FOIA Public Liaison absolutely livid that he was not placed in the academic fee category.

When an angry person is in a dispute, he or she will present his or her position —  a statement of his or her wants or demands. Positions are predetermined outcomes that typically end a conversation; for instance: “I insist that you place me in the academic fee category.” When a person presents only positions, it inevitably leads to argument and away from reasoned discussion and negotiation.

While it is impossible to negotiate positions, it is possible to productively discuss interests. Interests are the (often unmet) needs that underlie positions. Interests reveal vulnerability, so they are kept mostly hidden. For instance, the interests that underlie the position in our example might be the requester’s desire to be placed in a preferred fee category and his need for his academic and professional achievements to be acknowledged.

So in order to have a productive conversation with a difficult person, it’s crucial to move him or her away from his or her demands and toward the vulnerabilities he or she most wants to keep hidden. Sounds impossible, right? Happily, it is not. Next week we’ll talk about strategies for moving from positions to interests.

This week’s guest blogger is Gery Huelseman, Principal Technical Advisor to the Air Force’s Knowledge Ops Branch, National Air & Space Intelligence Center and key member of the OGIS-facilitated FOIA Information Technology Working Group. IT Working Group members will occasionally use the FOIA Ombudsman to share their thoughts on technology solutions.

CAPTION: Better SAFE than sorry. ON WITH THE JOB. GET IT DONE THE SAFE AND SURE WAY, 1941 – 1945 (ARC Identifier 515117).

Do you need to send someone a large amount of records but you can’t e-mail the files because they are too big?  Are you tired of preparing packages to be mailed out and then taking days or a week for them to reach the recipient?  Thanks to Safe Access File Exchange (SAFE), it is now possible to transfer records in minutes; you can quickly and securely share very large files (up to 2 gigabytes, or GB) with those that you do business with. You can share very large files, via the internet, without setting up special accounts or network access permissions — it’s easy to do and it is free.  Check it out!

 According to the U. S. Army Aviation and Missile Research Development and Engineering Center (AMRDEC) they developed SAFE to allow employees a fast, secure alternative to e-mail.  SAFE allows for much larger files to be sent than is normally allowed via e-mail. Since many organizations that do business with the Army have limits on the size of attachments that can be sent via e-mail, the Army created SAFE as an alternative file sharing method.

 Who can use SAFE? While SAFE was intended for the use of all within the Army community (employees and contractors), anyone can use SAFE to send files to someone with a .mil or .gov e-mail address. However, only users with valid DoD Common Access Card (CAC) can send files to other addresses such as .com or.edu.

What about security? With SAFE, your files are safe.  SAFE uses the SSL (Secure Socket Layer) protocol — 128-bit encryption — when a file is uploaded and downloaded. The SAFE server automatically scans all files as they are uploaded to the system.  If a file contains a known virus, it is not written to the file system.  Also, due to its design, SAFE is not susceptible to worms or other e-mail viruses.  The virus detection software is updated on a regular basis to ensure that any new viruses can be detected; however, no system today is 100% secure from viruses, so normal precautions should be taken.  If you receive a notification to download a file from someone you do not know, or were not expecting, call them to verify.

I need to share files that contain Privacy Act information. Can I use SAFE? The Army Information Assurance Office has approved SAFE for Privacy Act transfers; however, you may need to check with your Information Assurance Office and Privacy Act Office before using SAFE for this purpose. When sharing Privacy Act information the recipient will be notified that the data they are about to download is protected by the Privacy Act and the recipient is responsible for its protection in accordance with Department of the Army guidelines and policies. Again, you should check with your Information Assurance Office and Privacy Office before using SAFE for Privacy Act information.

So how does SAFE handle such large files so quickly? With SAFE any form of file(s), including a zip file, may be sent to anyone with a valid e-mail address.  Files of up to 2GB in size may be transferred through SAFE but the actual size is dependent on various factors such as connection speed and the network’s congestion.  If you are transferring multiple files, then the sum of all the files cannot exceed 2GB.  With SAFE there is an option where up to 25 files may be uploaded at one time; however, it is STRONGLY recommend that you ZIP or archive multiple files before sending them.

What does SAFE have to do with FOIA? While the Army uses SAFE for all sorts of purposes, we at the FOIA IT Working Group think that this technology could be particularly useful for those working on FOIA. In particular, SAFE can streamline referrals and consultations, a process that can be notoriously slow. Of course, no technology is one size fits all, but we believe that free, road tested technologies such as SAFE deserve a look. If you have questions about SAFE or if you would like to set up a similar system for your agency please send an e-mail to the AMRDEC Public Affairs Office.

The FOIA IT Working Group encourages you to post your suggestions, recommendations and concerns here on the FOIA Ombudsman.  Your comments can make a difference.

No time like the present: When to Do House Cleaning Jobs, 09/1972 (ARC Identifier 306737)

While Sunshine Week provides many opportunities to celebrate open government achievements, it also provides the perfect context to reflect upon changes that could improve FOIA. Think of it as a little spring cleaning.

Since opening in September 2009, we’ve worked with agencies and requesters on more than 1,500 FOIA matters, giving us a unique perspective and informing the following suggestions for tidying up the FOIA process.

Training: FOIA is everybody’s responsibility. Some agencies get it, but others don’t. We think it would make a big difference if everyone — even senior leadership like those in the Senior Executive Service and political appointees — receive training in FOIA when they join an agency. Coupled with more intensive training for key FOIA staff members, this could go a long way toward the culture change we are trying to achieve.

Standardizing FOIA web pages: agency web pages reflect that different agencies have different missions. While variety is the spice of life, it can make a FOIA requester’s job more difficult. We’d like to see standardized FOIA web pages across agencies — this includes reading rooms — to make it easier for requesters to find what they are looking for. One way that this could happen is if the government develops a simple, customizable template for FOIA pages.

Support from the top: agency leadership should recognize the importance of FOIA and support it. Some agencies are already way ahead here. We think that agencies could demonstrate a commitment to FOIA by communicating though senior official memos and agency all-hands meetings.

Creating a FOIA career track: it might be difficult for those outside the government to fully understand, but one way to galvanize an agency’s work in a certain area is to create a professional path. FOIA professionals have gone without such a career path for decades. We applaud the Office of Personnel Management’s recent announcement of the creation of the Government Information Series. We’d like to see this commitment expanded with the creation of a certification program for FOIA professionals and the addition of FOIA performance standards into performance plans for agency leadership.

So that’s our spring cleaning wish list. We’d love to hear your suggested FOIA improvements as well.