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Matters of Consent

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We must ask some, but not all, requesters for their signed consent. Chalk that up to agencies that don’t have OGIS language in their SORNs. (NARA Identifier 7666253)

The Consumer Financial Protection Bureau (CFPB) recently made our work a little bit easier in one small way. We no longer have to ask CFPB’s Freedom of Information Act (FOIA) requesters who come to OGIS for assistance to provide consent so the agency can discuss their requests with us.

That’s because CFBP alerted the world through a Federal Register notice that it will routinely share information in its FOIA records with OGIS without first getting the consent of the individual requester.

CFPB joins seven Cabinet-level departments and five agencies which have such an agreement—known as a Privacy Act Systems of Records Notice (SORN).

We’ve written before about the Privacy Act of 1974, which covers FOIA and Privacy Act request files at every agency. FOIA request files, which are retrieved by an individual’s name or personal identifier, cannot be disclosed to another person (outside of the agency) or to another agency, with certain exceptions.

One exception is when an individual consents to disclosure of his or her records request file. Another exception to the Privacy Act’s non-disclosure provision is when an agency “routinely” needs to disclose those records for certain purposes: think the Department of Justice (DOJ) and the Department of Homeland Security. Most agencies have a pretty long list of “routine uses,” many of which are common across agencies (for example, sharing records with the DOJ when there is litigation involving the individual’s FOIA request.)

Streamlining the way agencies share with us information about FOIA requests that is covered by the Privacy Act is about more than the mediation services we offer—it also strengthens our nascent agency assessment program. That’s because without a SORN that says the agency will, as a matter of routine, share information with OGIS, we will not be able to review agency FOIA files without the agency first obtaining the consent of each individual requester. Part of our assessment program includes reviewing FOIA request files.

We’ve asked all 15 Cabinet-level departments to include an OGIS routine use in their Privacy Act SORNs. The Departments of Defense; Health and Human Services; Homeland Security; Justice; State; Transportation; and Treasury have OGIS routine uses, as do six smaller agencies, including CFPB. Thank you!

So how difficult is it to amend a Privacy Act SORN?

Several years ago, OGIS worked with DOJ to develop a model routine use that agencies can use for this purpose:

 To the National Archives and Records Administration, Office of Government Information Services (OGIS), to the extent necessary to fulfill its responsibilities in 5 U.S.C. § 552(h), to review administrative agency policies, procedures and compliance with the Freedom of Information Act (FOIA), and to facilitate OGIS’ offering of mediation services to resolve disputes between persons making FOIA requests and administrative agencies.

We hope the agencies that don’t have such language in their Privacy Act SORNs will consider adding it.

Throwback Thursday: The Difference between FOIA’s Fee Categories and Fee Waiver

Unlocking FOIA fees is one of the keys to a successful FOIA request. (NARA Identifier 7858132)

Unlocking FOIA fees is one of the keys to a successful FOIA request. (NARA Identifier 7858132)

In honor of throwback Thursday, we’re bringing up a topic that we’ve covered previously in this post: the difference between FOIA’s fee categories and fee waivers. This topic is an oldie but a goodie, and confusion about the topic abounds.

Let’s start with the basics

FOIA includes three basic requester categories for the purposes of fees:

  • commercial requesters;
  • educational institutions, noncommercial scientific institutions, representatives of the media; and
  • all others.

There are different fees associated with each of these categories. We have broken out the categories and associated fees in an easy-to-read chart. The category that a requester is placed in can make a  large difference in terms of the final bill a requester must pay to receive records.

FOIA also allows requesters to ask the agency to waive or reduce fees. Fee waivers demand a much higher threshold for consideration that a fee category.  In order to qualify for a fee waiver or reduced fees, a requester must show that “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” The Department of Justice’s guidance to agencies on how to carry out FOIA’s fee provisions includes six analytical factors that agencies should consider when deciding if fees should be waived or reduced. To qualify, requesters should address each of these factors in their requests.  A requester’s ability to pay is not considered in this process.

Now that we have the basics out of the way, let’s move on to what this means for FOIA requesters in practice.

During fiscal year (FY) 2013, federal agencies granted 5,140 requests to waive fees, according to foia.gov; for context, that means that of the 678,391 FOIA requests agencies processed in FY 2013, fee waivers were granted in fewer than 1 percent of the cases. You should also know that asking for a fee waiver could slow the agency’s processing of your request. As we explained in our last blog post on this topic, most FOIA processers do not decide whether to grant a fee waiver; that decision is often sent up the chain of command or even to the appeals office, creating another step in the administrative process.

Requesters often get the best bang for their buck by making a clear case for being placed in a favorable fee category. Agencies place requesters in fee categories based on what and how the documents will be used.  Requesters should start this process by reviewing the agency’s FOIA regulations to make sure they meet the agency’s standards for a certain category, and what information they must provide to be placed in a certain category. If you request to be categorized as a member of the news media, it helps an agency evaluate your request if you include material like links to your published stories or a copy of a contract to publish a book.

You can save yourself a great deal of hassle by making sure you address your fee category status in your initial request. If you feel that an agency has placed you in an incorrect category, though, contact the FOIA officer and provide him or her with additional information to justify placement in another category.

Do you have any great tips for how to deal with FOIA fee issues? Let us know in the comments.

Make your voice heard: the FOIA Advisory Committee seeks public comments

Got a FOIA bee in your bonnet? The FOIA Advisory Committee wants to hear from you! (NARA Identifier 514417)

Got a FOIA bee in your bonnet? The FOIA Advisory Committee wants to hear from you! (NARA Identifier 514417)

On January 27, 2015 the FOIA Advisory Committee met to discuss its progress on examining three important FOIA issues: proactive disclosures, FOIA fees, and FOIA oversight and accountability.

The Committee opened the meeting by voting unanimously to approve the October 21, 2014 meeting minutes. The Committee also approved the bylaws drafted by the Committee’s Bylaws Working Group.

The Committee spent most of the meeting discussing status reports from the Proactive Disclosures, FOIA Fees, and Oversight and Accountability subcommittees. The meeting subcommittee reports are available on OGIS’s website, as are the transcript and video from the meeting.

As the FOIA Advisory Committee works hard to examine some challenging areas of FOIA law and policy, it needs your help. Input from the public will help the subcommittees better understand the issues that FOIA requesters and agencies face.

Proactive Disclosures Subcommittee co-chair David S. Reed noted the two specific issues the subcommittee is exploring: using data to held figure out what records the public would like the government to post proactively; and reconciling the FOIA’s proactive disclosure requirements with Section 508 of the Rehabilitation Act which requires agencies to make all posted records accessible to people with disabilities.

To help determine which records are of high value to the public, the subcommittee is using agency records of what the public is requesting under FOIA (commonly referred to as “FOIA logs”). Mr. Reed requested that Federal agencies provide the subcommittee with robust, detailed FOIA logs to analyze.

“Section 508” is the shorthand agencies and users use to refer to the requirements for Federal agencies to make their electronic and information technology accessible to people with disabilities. To improve the subcommittee’s understanding of the relationship between Section 508 compliance and proactive disclosures, Mr. Reed requested that Committee members, Federal agencies or the public share experiences where the requirements of Section 508 prevented an agency from making proactive disclosures. Mr. Reed also asked for examples of where an agency made a proactive disclosure before making the record Section 508 compliant (for example, posting the record online while it was undergoing remediation).

The FOIA Fees Subcommittee is developing a survey for FOIA professionals that will examine the current fee structure and how agencies handle requests they consider burdensome. The subcommittee asks the public to submit example survey questions that will help the subcommittee gather the information it needs to better understand this issue. It also welcomes recommendations on how to improve the administration of FOIA fees.

The Oversight and Accountability Subcommittee has compiled a list of FOIA reports, reviews, audits, and inspections and made them available on the subcommittee’s webpage. The subcommittee welcomes your suggestions on U.S. Government Accountability Office (GAO) Audits and Reports and Agency Audits, Reports and Reviews to include in its collection. The subcommittee will review the reports to identify successes and challenges as well as gaps and areas for additional oversight.

The Oversight and Accountability Subcommittee will also assess the role of FOIA Public Liaisons at agencies to help determine what is working at certain agencies and how the roles differ between agencies. To complete this work, the subcommittee will hold a roundtable with agency FOIA Public Liaisons and be sending a survey out to FOIA Public Liaisons. The subcommittee welcomes any suggestions and feedback you have with regard to FOIA Public Liaisons and FOIA oversight and accountability.

Please visit the FOIA Advisory Committee’s webpage, including the Public Comments page, 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!

FOIA Advisory Committee to Meet January 27, 2015 – Update

Photograph of Workers Shoveling Snow from the National Archives Building Constitution Avenue Entrance , 01/02/1936  (NARA Identifier: 7820535 )

Photograph of Workers Shoveling Snow from the National Archives Building Constitution Avenue Entrance, 01/02/1936 (NARA Identifier: 7820535 )

The next meeting of the FOIA Advisory Committee is scheduled for Tuesday, January 27 from 10 a.m. to 1 p.m. The meeting will take place in the Archivist’s Reception Room (Room 105) at the National Archives Building, 700 Pennsylvania Avenue, NW, in Washington, D.C. Doors for the meeting open at 9:30 a.m.

In anticipation of inclement weather:

–If the Federal Government is open with unscheduled leave or telework, we will hold the meeting as scheduled.

–If the Federal Government has a delayed arrival policy, we will start the meeting at 10 a.m. as scheduled.

–If the Federal Government is closed the meeting will be cancelled.

Check our operating statusFacebook pages, and Twitter. Keep informed about the National Archives and Record Administration’s Washington, DC, area operating status through the OPM website or our status line 301-837-0700.

The meeting is open to the public. Those interested in attending the meeting in person are required to register in advance and will be subject to security screening. Attendees are required to show one form of Government-issued photo identification (e.g. driver’s license) to gain admittance. Space is limited, so register to reserve your place on the list soon!

Eventbrite - Freedom of Information Act (FOIA) Advisory Committee Meeting

If you have any questions, please contact Christa Lemelin at 202-741-5773.

 

Record Keeping for FOIA Requesters 101

Choose any record keeping method that works for you! (NARA Identifier 6348589)

Choose any record keeping method that works for you! (NARA Identifier 6348589)

Here at OGIS, we love good record keeping practices. Not only are we housed within the National Records and Archives Administration (NARA), which has responsibility for setting the federal government’s record keeping policies, we also know that strong agency record keeping is the backbone of a good Freedom of Information Act (FOIA) office. If an agency is not keeping good records, it is considerably harder—if not impossible—to locate records that are responsive to a request.

Record keeping is not just important for agencies; it can be critical for FOIA requesters. Here are a couple of tips for navigating the FOIA process as smoothly and efficiently as possible:

Keep track of your tracking numbers. FOIA requires agencies to provide requesters with a tracking number for each request that will take longer than 10 days to process. Requesters should be able to use this number to find the status of their request online or on the telephone. Having a system to track your tracking numbers is particularly important if you have a number of outstanding requests because it will help make sure that the agency can quickly check the status of your request and minimizes any confusion about which request you are calling or emailing about.

Choose the tracking method that works best for you. Like handwritten lists? Go for it. Prefer using a spreadsheet that allows you to sort and search? Great. A number of private services also store information about FOIA requests, sometimes for a fee. Whichever method you choose, be sure to include a couple of key pieces of information along with the tracking number, including the subject of the request, the agency processing the request, and the date you sent your request.

Document your initial request and appeal. It’s important to have proof that you sent a FOIA request or an appeal on a particular date in the event that machines malfunction or humans make mistakes. FOIA requests generally are processed on a first in, first out basis. The date of your initial request determines where your request is placed in the agency’s queue. If an agency loses your initial request and you can show when it was sent, the agency might be willing to put your request in the place it would have been in the line if it had been logged in appropriately. For appeals, the date is important because many agencies require that appeals be made within a certain time frame. (Appeal times vary by agency and generally run 30, 45 or 60 days, although they range from 10 days to no time limit.) Some agencies may consider appeals that are filed late, but some will not.

If your request is printed (because you are mailing or faxing it) or you are sending it as an email attachment, remember to include the date on the upper right-hand corner. An easy and cost-effective method to document submission of your initial request is saving the record that the request was sent, whether via email, fax, or registered mail.

Following these easy steps helps you protect your rights under the FOIA, and helps make sure the process is as painless as possible for both the requester and the agency.

FOIA requesters, how do you keep track of your requests? Agency FOIA folks, what record keeping best practices have you observed among your requesters? Please share in the comments.