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OGIS Director testifies, suggests improvements to FOIA

OGIS recommends marrying FOIA and IT procurement (NARA Identifier 6447371)

OGIS recommends marrying FOIA and IT procurement (NARA Identifier 6447371)

OGIS Director Miriam Nisbet joined other advocates of the Freedom of Information Act (FOIA) on March 11, testifying before the Senate Committee on the Judiciary about OGIS’s work and two new suggestions the Office has for improving FOIA.

OGIS proposes that FOIA be embedded into Federal Information Technology (IT) management across the government.

“We suggest that when procuring new technology, upgrading existing technology, or even creating a new large agency database, agency program officers consult with their records managers and FOIA professionals to best determine how the records will be managed, how the agency might efficiently and effectively search for records in response to FOIA requests for the information contained in those records and ideally, how the agency might proactively disclose information,” Director Nisbet told the Senate Committee.

OGIS plans to pursue the idea through the National Action Plan initiative led by the Department of Justice (DOJ) to identify ways to improve internal agency FOIA processes. Melanie Pustay, director of DOJ’s Office of Information Policy (OIP) also testified and discussed the Plan’s five initiatives to modernize FOIA.

In addition to DOJ, OGIS will work with the Chief Information Officers Council and the Federal Records Council, the principal interagency forums for improving IT and Federal records policies, respectively.

OGIS also has asked for Executive Branch guidance on ways to provide exemplary customer service to FOIA requesters, with particular attention to using dispute resolution through FOIA Public Liaisons and OGIS to prevent and resolve disputes that otherwise could lead to costly litigation. FOIA Public Liaisons play a crucial role in the FOIA process with their statutory mandate to help to resolve disputes between requesters and agencies. The recommendation mirrors a 2013 OGIS recommendation that agencies work with OGIS to implement dispute resolution for FOIA conflicts.

Two other 2013 OGIS recommendations, examining FOIA fees and reviewing the process for requesting immigration-related records, are complex issues that require long-term continuing attention and continue in Fiscal Year (FY) 2014, Director Nisbet told the committee.

She also noted that requests for OGIS mediation services were up 40 percent in FY 2013.

Senate Judiciary Chairman Patrick Leahy of Vermont said he is encouraged by “the good work that OGIS is doing, but I worry that the Office does not have sufficient independence, authority and resources to fully carry out its work.”

The “FOIA Oversight and Implementation Act of 2014” would, among other things, give OGIS greater independence and expanded authority and reporting requirements. The Administration has not taken a position on the bill, H.R. 1211, which was sent to the Senate Judiciary Committee after House passage on February 25, 2014.

Director Nisbet announced that the National Archives and Records Administration recently approved three new positions to carry out OGIS’s review mission.  Amy Bennett, assistant director of OpenTheGovernment.org, said that while the new positions are welcome, “OGIS needs several more bodies, as well as new resources to help promote and support the office’s work.”

That idea was echoed by Dr. David Cuillier, director of the University of Arizona School of Journalism and president of the Society of Professional Journalists. “Strengthen OGIS with more staff, more authority and more independence,” he told the Committee.

Dr. Cuillier, Ms. Bennett and Daniel Metcalfe, director of the Collaboration on Government Secrecy (CGS) at American University’s Washington College of Law, recommended several ways to strengthen FOIA including, in no particular order:

  • Requiring a public interest balancing test for agencies wishing to use FOIA’s Exemption 5 to withhold pre-decisional deliberative records (OpenTheGovernment.org)
  • Codifying the presumption of openness in FOIA memoranda issued by the President and the Attorney General on January 21, 2009 and March 19, 2009, respectively (Dr. Cuillier & OpenTheGovernment.org)
  • Investing in a single online FOIA portal for receiving and tracking requests (Dr. Cuillier)

Reining in Exemption 3 laws which specifically exempt certain information from disclosure under FOIA by requiring a public interest balancing test in applying such exemptions and including sunsets on any new Exemption 3 statutes (Dr. Cuillier & Mr. Metcalfe)