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Let’s Talk About Estimated Dates of Completion

In 2007 Congress added a provision into the Freedom of Information Act (FOIA) that requires agencies to provide a requester with an estimated date by which the agency expects to  complete work on a request, when the requester asks for one. This requirement helps the requester better understand the agency’s FOIA process and gives the requester a more accurate picture of when he/she will receive a response.

We understand that estimating a date of completion is more difficult than just looking at a calendar (like this Kiowa Anko calendar). But explaining more about the estimates will help improve communication with requesters. (NARA Identifier 523631)

We understand that estimating a date of completion is more difficult than just looking at a calendar (like this Kiowa Anko calendar). But explaining more about the estimates will help improve communication with requesters. (NARA Identifier 523631)

We’ve previously discussed  how important it is for an agency to provide an estimated date of completion if the agency wants to avoid a lawsuit and we’ve even given agencies a couple of tips on how they can come up with an estimated date of completion.

While it is clear that providing estimated dates of completion is a good idea – both from a compliance and customer service standpoint – we understand that actually coming up with a date can feel like a moving target. Further, we hear from some FOIA professionals that they are hesitant to provide an estimated date of completion because requesters might treat the estimate like a firm deadline.

We understand this concern, and we have observed situations in which requesters interpreted estimated completion dates as deadlines. However, we have also observed that by providing a requester with an explanation of the factors that impact processing time, that requester develops a more realistic expectation of when he/she might receive a response .

Lots of factors go into how long it takes to process a request, including not only the complexity and possible number of responsive records to the request in question, but also the complexity and number of possible responsive documents to requests that are ahead of the request in question in the agency’s queue. In order to help he requester understand  that an estimate is just that – an estimate—OGIS includes the following explanation in our correspondence responding to estimated date of completion cases:

Please know that this date roughly estimates how long it will take the agency to close requests ahead of your in the queue and complete work on your request. The actual date of completion might be before or after this estimate based on the complexity of the requests in the agency’s queue.

If you like this language, please feel free to use it in your communication with requesters. Have any other suggestions or tips to handle requests for estimated dates of completion? Let us know in the comments section!

Let’s Make It Easier for Requesters to Use the FOIA Process

It should be easy to find an agency's FOIA regulations online. (NARA Identifier 6482991

It should be easy to find an agency’s FOIA regulations online. (NARA Identifier 6482991

Agency Freedom of Information Act (FOIA) regulations are one of the most important resources available to those requesting information from the federal government. As we’ve mentioned in the past, agency FOIA regulations are essentially the rule book the agency uses to process a request.  And, as anyone who has ever played a new board or card game knows, it is much easier to win when you know the rules of the game.

FOIA regulations touch on a wide variety of topics, some of which the agency must address in the regulation and some of which they may address (see our blog post on the importance of agency FOIA regulations for a full explanation of what is in an agency’s FOIA regulation, and why it matters). All regulations include information essential to a successful FOIA request, including where to send an initial request and the time limit for appealing an adverse determination.

Important though they may be, FOIA regulations are frequently very difficult for requesters to find. Some requesters search for agency FOIA regulations in the Electronic Code of Federal Regulations, or eCFR. One way to search the eCFR for the applicable regulations is do a simple search for the agency’s name and then click the link to “Refine this search” and narrow the results by adding  “Freedom of Information Act” or “5 USC 552” into the query (5 USC 552 refers to FOIA’s location in the US Code). Requesters can also find links to agency regulations in the eCFR by visiting the results of National Security Archive’s 2013 audit of agency FOIA regulations; please note, however, that the National Security Archive’s table showing when the regulation was last updated might be out of date.

There is a very easy step agencies can take to help requesters better understand the process the agency uses, help make sure requests are routed to the correct office, and make sure requesters are aware of any other requirements under the law: post a link to the agency’s regulation on the agency’s FOIA website. Posting a link to the regulation in the eCFR is a good first step. However, as we noted in our most recent agency assessment report, posting the agency’s regulation as a searchable PDF or in HTML is even more user-friendly.

Do you have any other ideas for simple steps agencies can take to help the public use the FOIA process? Let us know in the comments!

Advisory Committee Meeting Set for April 21: Reserve Your Seat Now!

Unfortunately, there is no popcorn allowed in the Archivist's Reception Room, but we still hope you will join us for the April 21 FOIA Advisory Committee meeting! (NARA Identifier 6801620

Unfortunately, there is no popcorn allowed in the Archivist’s Reception Room, but we still hope you will join us for the April 21 FOIA Advisory Committee meeting! (NARA Identifier 6801620

It’s time for another meeting of the federal FOIA Advisory Committee! Be sure to reserve your seat now for our Tuesday April 21 meeting from 9 a.m. to 1 p.m. in the Archivist’s Reception Room at the National Archives and Records Administration in Washington, DC.

Similar to our last few meetings, the Committee’s subcommittees will present updates on their progress over the last few months. These subcommittees are exploring issues related to FOIA fees, oversight and accountability, and making information available to the public. Archivist of the United States David Ferriero will open the meeting.

The meeting will not be streamed live online for those who can’t attend in person (though we will post notes and video of the meeting as soon as possible). However, attending the meeting is NOT the only way to keep up with the Committee’s work or to share your views and insights with the members. You can visit the Committee’s webpage to provide feedback, and to read Committee documents, including notes from subcommittee meetings.

OGIS Releases Second Agency Assessment

microscope6399089

To create an agency assessment report, OGIS takes a close look at every facet of the agency’s FOIA program. (NARA identifier 6399089)

We’re pleased to release our second assessment of an agency FOIA program:  the National Archives and Records Administration’s (NARA) Special Access and FOIA unit. Regular readers will recall that we launched our agency assessment program last year to help us better fulfill our statutory mandate to review agency FOIA policies, procedures and compliance. (5 U.S.C. §§ 552 (h)(2)(A) and (B).)

As the name of the office implies, Special Access and FOIA operates slightly differently than other FOIA offices. One of the biggest differences between Special Access and FOIA and other FOIA shops is that Special Access and FOIA primarily processes records that were created by another agency. Once an agency no longer has a business need for permanently historically valuable records, it transfers legal custody of the records to NARA. (The term of art for this change in custody is accessioned.) More than 90 percent of archival records are available without a FOIA request. The office processes requests for accessioned records located at NARA’s College Park, MD, and Washington, DC, facilities. Because the records are archival, Special Access and FOIA uses a different fee system (which is set by law). The office also does not use Exemption 5, which covers several well-known legal privileges, including the deliberative process, attorney-work product, and attorney-client privileges, to withhold information.

Like our first assessment, this 12-page report includes our observations, including best practices, and our recommendations. At the end is an at-a-glance summary of our recommendations, which are intended to help improve the FOIA process for the agency and for requesters.

To prepare this report, our review team evaluated NARA’s regulations and website against the requirements of the statute, and our best practices. We also reviewed the agency’s Annual FOIA and Chief FOIA Officer reports and evaluations by other groups (from both in and outside of the government), and looked at litigation against the agency to identify any trends. (We found none.) This research was supplemented by a survey of agency FOIA professionals and in-depth interview with the office’s head, Martha Murphy. We also reviewed a sample of case files to see how the office is carrying out the law in practice.

It’s important to note that the report doesn’t touch on every facet of FOIA. That doesn’t mean we didn’t look at how the agency measures up to every statutory requirement. We did, and in an effort to create a readable report that the agency will use, we wrote only about the best practices we observed and about our recommendations for improvements. We hope that the at-a-glance summary of our recommendations will help agency FOIA managers as they plan for future improvements.

The OGIS Review Team has scheduled six other agency reviews for this fiscal year. Next up, we will focus on components of the Department of Homeland Security, starting with  the Federal Emergency Management Agency (FEMA). The other components we’ll assess  are Coast Guard , Transportation Security Administration , Secret Service , US Immigration and Customs Enforcement, and Customs and Border Protection.

Announcing OGIS’s FY 2014 Report!

OGIS 2014 Report Cover

Fiscal Year (FY) 2015 is shaping up to be a busy one for OGIS, just as FY 2014 was. Want to learn more about OGIS’s FY 2014? Check out our annual report: Building a Bridge Between FOIA Requesters & Federal Agencies 2015 Report for FY 2014. We’ve got a nifty page-turn version on our website, along with a less-fancy PDF version.

Our two key accomplishments in FY 2014: establishing a new team to review agency Freedom of Information Act (FOIA) policies, procedures, and compliance, and establishing a new FOIA Advisory Committee.

Regular readers of this blog know we’ve posted a lot about the FOIA Advisory Committee, established under the direction of our parent agency, the National Archives and Records Administration (NARA) as part of the Second U.S. Open Government National Action Plan. (Mark your calendars–the Committee next meets on Tuesday April 21.)

Stay tuned for more information about our FOIA agency assessment program—including our report on NARA’s Special Access and FOIA program. In case you missed it, we released our first agency assessment of NARA’s Office of General Counsel in November.

Happy reading! And let us know what you think in the comments section.