The FOIA Ombudsman

OGIS works to strike the right note with requesters and agencies. California. #8. Oakland. Northern California Music Project. Sax Section, Dance Band., ca. 05/20/1940 (ARC Identifier 296098)

Since opening in late 2009, we’ve received requests for assistance from requesters and agencies at every stage in the FOIA process. We’ve heard from requesters planning to sue within days of contacting us and we have heard from agencies asking for help communicating with just such a FOIA requester. While we do our best to help any requester or agency that contacts us, we strive to work in concert with an agency’s administrative process. Sounds great, but how do we strike that harmonious chord?

The 2007 OPEN Government Act created OGIS to “offer mediation services to resolve disputes between persons making requests under [FOIA] and administrative agencies as a non-exclusive alternative to litigation.” A requester most typically files a FOIA lawsuit after exhausting his or her administrative remedies — in other words, after making a FOIA request, receiving  a response, filing an appeal, and receiving a final decision letter from the agency. (Note that lawsuits related to delays are an exception to this rule — by law, a requester may sue an agency 21 working days after filing a FOIA request if he or she has not received a response). OGIS’s mediation services fit best at this point in the administrative process — after a requester has received a final decision letter. For this reason, we encourage agencies to include OGIS’s language in final appeal letters.

So what can you expect if you contact OGIS before you receive an appeal response? Congress dubbed OGIS the “FOIA Ombudsman,” and as explained in a previous post, our ombuds services do not address the substance of a dispute (such as the exemptions taken), but rather the mechanics of a dispute (such as providing a status update on a delayed request). If you contact OGIS with a substantive dispute before you file an administrative appeal, we will direct you to do just that and ask that you contact us again if you remain dissatisfied after you receive a final response. This is how we stay in perfect rhythm with agencies.

So what about those pesky delays referred to earlier? If you’ve spent any time around FOIA, you know that delays are a big problem for almost every agency.  If you contact OGIS regarding a delay, we can:

• Contact the agency for an update on the status of your request;
• Learn more about the agency’s backlog and how it affects your place in the queue;
• Provide information about how the agency processes requests; and, in some cases,
• Work with you to narrow the scope of your request which may result in faster processing.

What we cannot do is ask an agency to move your request ahead in the queue.

Wherever you are in the process, feel free to contact us. We will do our best to assist you however we can.

Happier than the morning sun: Beach at Ohio, or "Sunshine" Key, 06/1973 (ARC Identifier 548812)

OGIS is pleased to announce that we’re sponsoring a unique event to mark Sunshine Week (March 9-16, 2012), a celebration of government openness.

Our parent agency, the National Archives and Records Administration (NARA), is acknowledging Sunshine Week by showcasing the original Freedom of Information Act, Public Law 89-487. The original historic document will be available for viewing from Friday, March 9, to Sunday, March 18, in the East Rotunda Gallery of the National Archives (Constitution Avenue at 9th Street, NW, in Washington, D.C.). Admission is free.

Mark your calendars for 12:30 p.m. Monday, March 12 — that’s when OGIS hosts a special viewing of the FOIA document. Please join us in the East Rotunda Gallery for brief remarks from David Ferriero, Archivist of the United States, OGIS Director Miriam Nisbet and others. Attendees will get a special look at the document that started it all, as well as a chance to mingle with others from the open government community. It promises to be a great event for history buffs and transparency buffs alike.

The details:

• The line to get into the National Archives can be long. Please feel free to use the special events entrance at 7th and Constitution streets — just let the guards know that you are there for OGIS’s Sunshine Week event.
• If you are planning to attend, please drop us a line at ogis@nara.gov.

We hope to see you there!

Signs of spring are appearing in Washington – robins abound, crocuses are in bloom, food truck patrons eat outside rather than scurrying back to the office – and that can only mean one thing: Sunshine Week is nearly here!

Let the Sun Shine In. Entrance to travel-trailer camp at Ohio, or “Sunshine Key” extensive dredging, filling and defoliation have taken place to make way for the camp. (1955) (ARC Identifier 548674)

We at OGIS eagerly anticipate this weeklong (March 11-17, 2012) celebration of government openness, scheduled to coincide with James Madison’s birthday. Groups across the country organize events to promote openness in state and local governments; you can learn more about local events (and how you can nominate a Local Hero from your own community for an award) at Sunshine Week’s website.

Several interesting Sunshine Week events are planned in Washington, DC, this year. On Monday March 12, the Department of Justice’s Office for Information Policy hosts a Sunshine Week celebration.  OGIS Director Miriam Nisbet will testify before the Senate Judiciary Committee at a FOIA oversight hearing on Tuesday March 13. Friday March 16 will be particularly sunny, featuring  the Fifth Annual Freedom of Information Day Celebration at the Washington College of Law at American University and  the First Amendment Center’s National FOI Day event at the Newseum which features an afternoon program from OpenTheGovernment.org.

To add to the excitement, OGIS and the National Archives and Records Administration will have a Sunshine Week event of our own this year. Watch this space for an announcement in the coming weeks.

Romance is afoot at the National Archives and Records Administration. Photograph of St. Valentine's Day Hop on the Mezzanine Level of the National Archives, 1975. (ARC identifier 3493299)

My name is Jean Whyte, and I serve as Director of the National Archives and Records Administration’s Alternative Dispute Resolution (ADR) program.  I’ve been invited to write this guest post about the intersection of FOIA and ADR and why I believe these two are made for each other.  First, a little about our couple:

Freedom of Information Act (FOIA): A 45 year-old federal law that provides for the disclosure of information held by administrative agencies to the public, unless the documents requested fall into one of the specific exemptions set forth in the statute.

Administrative Dispute Resolution Act (ADRA): A 21 year-old federal law that encourages the use of ADR processes, rather than litigation, to settle disputes or legal conflicts.

Despite the age gap and different interests, these two got hitched back in 2007 when Congress established OGIS as the FOIA ombudsman by amending the FOIA with the O.P.E.N. Government Act of 2007.

While hardly a contentious union befitting the Montagues and Capulets, the marrying of these bodies of law was a unique combination without precedent. At most federal agencies, ADR was one thing and FOIA was something else altogether, without even a passing glance between them.  But some recognized a matchmaking opportunity when considerable FOIA backlogs caused requesters and agencies alike to seek out new solutions to disputes.  The promise of increasing communication, resolving disputes, and speeding up access to information was an enticing prospect to all involved.  OGIS has been working diligently over the past few years to fulfill those objectives.  The honeymoon is now over, and like any relationship, it has taken hard work and a willingness to learn new ways to integrate FOIA with ADR.

One of the strategies employed by OGIS has been to embrace the federal ADR community and adopt ADR conflict resolution techniques to improve the FOIA process.  At first blush, it appears that little commonality among the two exists.  ADR methods have traditionally been used in the federal government to resolve, for example, employment or procurement matters…but FOIA?

Through my collaborations with OGIS, I’ve found that FOIA and ADR are actually a perfect fit. Participants in the FOIA process bring varied, and sometimes contrary, positions to a pending FOIA request.  It turns out that the heart of many FOIA disputes often comes down to effective communication and developing positive relationships among stakeholders.  FOIA professionals equipped with core ADR skills such as interest-based bargaining, open questions, active listening, and option-building increases the likelihood that parties will achieve greater satisfaction.

OGIS is making a match between agency ADR programs and FOIA programs in a couple of ways. First, OGIS hosts dispute resolution training sessions for agency FOIA professionals in partnership with agency ADR offices, and I’ve had an opportunity to participate in several of them.  The feedback from these sessions has been very positive, and I hope that there will be more opportunities for collaboration going forward. Second, OGIS reaches out to agency ADR programs to introduce the idea of applying their work to FOIA disputes within their agencies.

By interacting with OGIS as an ADR professional, I have learned a great deal about how we can work together to strengthen and improve both fields.  It’s my hope that ADR and FOIA will be a love match for the ages.

The more things change, the more they stay the same. Photograph of World's First Computer, the Electronic Numerical Integrator and Calculator (ARC identifier 594262)

In August 2011, OGIS hosted a meeting of FOIA IT professionals from the Departments of Defense, Homeland Security, and State, and the Federal Bureau of Investigation to discuss how technology can streamline the FOIA process. This single meeting spawned a group of FOIA and IT professionals who are sharing ideas, making plans and dreaming big about new ways to apply technology to the FOIA process.

Though the FOIA IT Working Group formed in October 2011, it already has big plans. Items being discussed include:

• Ways to collect the IT requirements of FOIA professionals and communicate those to the companies that create products for this audience;
• Technologies that agencies now use that can be re-purposed for FOIA (such as using the Intelink intranet to streamline consultations and referrals);
• Increasing participation in the FOIA Portal and helping agencies recognize the potential benefit of this effort; and
• Applying this group’s unique knowledge to FOIA issues such as database requests and releasing best practices to help agencies better navigate them.

We are very excited to be working with our colleagues from across the government on the FOIA IT Working Group. It’s just another example of how teamwork really works. Over the next few months, FOIA IT Working Group members will share their thoughts with you here on The FOIA Ombudsman blog. Let us know if you are interested in joining this group!

Meanwhile, the Office of Information Policy at the Department of Justice has a similar group that meets regularly to exchange ideas about FOIA and technology. The group is challenging attorneys and others in the FOIA world to think about how existing technologies, such as electronic discovery, used in litigation can be re-tooled for the FOIA process.

One example provided at the group’s January meeting involved the use of an e-discovery tool to whittle 6.2 million potentially responsive documents down to 7,500 documents, reducing the potential processing time from 125,000 hours to 150 hours.  OGIS attends DOJ’s working group meetings and will keep you posted via this blog.

In the course of our work as the FOIA Ombudsman, we regularly hear from agencies and requesters about FOIA practices that work well. We also hear about practices that don’t work as well. Too often, such problems result in legal action by requesters.

We have observed that the following agency practices can be “litigation invitations”:

Failing to give a requester an estimated date of completion. The 2007 amendments to FOIA require agencies to provide requesters with an estimated date of completion, but many agencies still do not do so. When asked why, agencies report that they have not determined how best to accurately compute an estimated completion date or that they are reluctant to provide an estimated completion date: if the date is not met it would open up a whole set of other problems related to revising the estimated date of completion and to maintaining or re-building rapport with the requester and agency officials if the dates slip.

Aside from the fact that FOIA requires agencies to provide requesters with an estimated date of completion, providing estimated completion dates can be advantageous to agencies. First, an estimate is just that, an agency’s educated guess based on the information it has available at that point in time. Estimated completion dates can also keep an agency on track and in tune with its FOIA process. For example, if an agency figures out how much time it takes for each stage in the FOIA process, it makes it easier to manage its FOIA case load by recognizing bottlenecks in the process. When requesters are given an estimated date of completion, it helps to manage their expectations of when they will receive a response to a request.

If your agency needs to change the estimated completion date, we encourage you to let the requester know as soon as possible and provide an explanation as to why it has changed. A requester may not be happy about receiving multiple estimated completion dates; however, if FOIA professionals are thoughtful about the estimates and consistent in communicating with the requester, then this will provide good customer service that will go a long way in maintaining the relationship. We have observed that some agencies calculate and provide the estimates when they begin processing a request. These agencies also proactively provide the estimated completion date and will update it as needed. While this approach may not work for all agencies, it seems to work well for some agencies. The Department of Justice’s Office of Information Policy provides more guidance on this issue in its FOIAPost.

Failing to talk to a requester. We’ve heard from requesters (and even from some agencies!) that there are agencies that will not speak to requesters regarding their requests—at all. We have observed that communication with requesters is not only good customer service, but it the single most efficient and cost-effective way to avoid disputes. Requesters have told us that if an agency at least lets them know what is going on with their request, they will be less likely to file suit in those cases. We have also seen that once we get involved and just explain the FOIA process to requesters, they are also less likely to file suit. The FOIA process can confuse those on the outside looking in. If you aren’t willing to talk to requesters and let them know what is going on, you are, in their minds, giving them the green light to run to the court house to file suit. Customers also tell us that even bad news is better than no news at all. If FOIA professionals are not sure how to deliver bad news to requesters, please consider taking OGIS’s Dispute Resolution Skills for FOIA Professionals training.

Failing to explain withholdings in final response letters. We’ve seen many final response letters that only cite the exemptions claimed to withhold information. While this may be legally sufficient, misunderstandings and disputes may be avoided if the final response letter provides a brief description of the record systems searched and the nature of the information withheld. When a requester is able to understand where the agency searched for responsive records and the type of information withheld under a FOIA exemption, it can result in fewer administrative appeals. Moreover, when we provide more detailed information about the exemption used and how it applies in a specific case, requesters gain greater understanding and often decide not to file a lawsuit.

So how can agencies improve their response letters? The Plain Writing Act of 2010 is a useful tool in helping agencies re-think their FOIA letter templates to make them more easily understood. The more information an agency gives regarding the reasons for the denial or even going further and explaining the nature of information withheld, the less likely it is that a requester will sue.

Failing to work with OGIS in good faith. OGIS’s process complements the agency FOIA process. Whenever practical, OGIS encourages requesters to exhaust all administrative remedies within an agency before pursuing facilitation or mediation through our office. OGIS’s process is often short, simple and streamlined. There are times when agencies do not fully engage with OGIS, which can lead some requesters to feel like they must sue in order to be heard. Congress created OGIS as an alternative to litigation, so we are here to help, not hinder, the FOIA process. We are not the FOIA police. We advocate for neither requesters nor agencies, but for FOIA. When working with OGIS, the goal is for the parties to work together to find common ground, which in many cases is a win-win situation.

So, in a nutshell: it’s all about good customer service. By making good customer service the focus, you may save time, energy and money that may otherwise go into defending a FOIA lawsuit. Perhaps more importantly, it will improve the administration of FOIA.  Let us know if you have any additional tips for avoiding FOIA litigation.

FOIA requests for third-party information present a difficult balancing act for Federal agencies. On Tuesday January 24, OGIS and the Department of Justice’s Office of Information Policy (OIP) hosted a Requester Roundtable to discuss issues that arise from third-party requests. If you couldn’t make it, we’re here to share some tips.

When considering third-party requests, it is important to get the balance right. Photograph of three San Francisco Mint employees with the bullion balance scales (ARC identifier 296564)

When a requester asks an agency for records about someone else, the agency must balance an individual’s right to privacy with the public’s right to know about the operations of the Federal government. While it is a balancing act, it’s a necessary one; if the government identifies an individual’s right to privacy in the requested records then it shouldn’t release those records unless the release is “warranted” due to a countervailing public interest in the disclosure. Of course, the starting point – even before the balancing – is whether there is a privacy interest at all.  For example, high-level government officials are considered to have less of a right to privacy (at least in terms of their work) than private citizens.

In terms of FOIA, third-party requests are considered under exemptions 6 and 7(C). Third-party requests also may invoke what is colloquially known as a “Glomar” response (the history of which is a topic of another day’s blog), which allows an agency to neither confirm nor deny the existence of records. OGIS Director Miriam Nisbet shared an example of how the exemptions and a Glomar response might interact: if you request the background investigation report of a high-level government official, you can expect that some parts of it will be redacted under exemption 6 (and possibly 7(C), yikes!). However, if you request information about whether a high-level government official has sought counseling from the agency’s Employee Assistance Program, you likely will receive a Glomar response.

Tips for agencies:

• If your agency automatically Glomars certain types of searches (such as those within specific records systems, or for types of records such as terrorist watch lists), consider publicizing this fact so that requesters know what to expect.
• If in processing a third-party request, an agency bifurcates (or in other words, separates) the file as in the above example, the agency’s response should state that certain records fall under certain exemptions and as to any other requested records, it will neither confirm nor deny their existence.
• If requesters fail to make the case for a third-party’s public figure status, consider indicating in your response what kind of information may be helpful in reconsidering that request.

Tips for requesters:

• When establishing a claim for a third party’s public figure status, do not assume that the agency’s FOIA staff will be able to take the time to research your subject. Include as much information as you can.
• The same can be said for establishing the link between the subject and the public’s right to know about the operations of the Federal government.
• Even if you suspect that requested records will be exempt or Glomarized, make the request anyway! Things change and you just might be surprised.

Throughout 2011, OGIS observed a recurring concept: Federal agencies are succeeding through internal collaboration. This “team approach” to government operations promotes efficiency, reduces redundancy, and helps an agency successfully meet its statutory mandate.

The team approach makes tricky tasks easier. Photograph of a group of skaters: 02/1940 (ARC identifier 2128510).

One area where teamwork is particularly important is records management; we’ve observed that many agencies are getting wise to this fact. President Obama’s November 28, 2011, Memorandum, titled “Presidential Memorandum — Managing Government Records,” launched an executive branch-wide effort to modernize records management policies and practices to minimize costs and ultimately improve FOIA operations. Agencies must submit a report to the Archivist of the United States and the Director of the Office of Management and Budget (OMB) describing plans for improving and maintaining their records management programs within 120 days. OMB and the Archivist, along with the Associate Attorney General, will issue a Records Management Directive setting forth specific steps agencies must take to reform and improve records management policies and practices. Replete throughout this Memorandum is the concept of “a team approach” to implementing the initiative both within and between agencies, including at the highest levels of government.

Improving records management with an eye toward FOIA is an observed OGIS best practice. For example, the Securities and Exchange Commission (SEC) combined FOIA and records management operations in 2010. Creating the Office of FOIA and Records Management Services allowed SEC professionals to focus efforts on issues unique to FOIA, such as locating records and providing resources and advocacy to improve records management practices, according to the SEC’s  2011 Chief FOIA Officer Report.

The team approach can also best serve the agency and the public when applied to the area of proactive disclosures. FOIA requires agencies to make certain categories of records available for public inspection and copying without waiting to receive a FOIA request.  In addition, the President’s FOIA Memorandum directs agencies to take affirmative steps to make information public without waiting for a FOIA request. One great way an agency can identify information for proactive disclosure is through collaboration between agency FOIA professionals, IT staff, primary program offices and/or subject matter experts, Public and Legislative Affairs Offices, and General Counsels. The public can also be an important part of this team by providing valuable feedback as to the type of information it would like to see agencies post online. This team approach leads to ready identification of relevant information and faster approval for online posting and avoids duplicating efforts. Better still, it’s efficient and cost-effective.

OGIS receives many cases involving FOIA requests for access to government databases. Working on several different cases with different agencies, we’ve seen the team approach turn what started as a daunting endeavor into a manageable process, and how failing to use the team approach can drag out a FOIA request for months or even years. These requests can be overwhelming to FOIA professionals — they involve huge amounts of data in unfamiliar formats and use terms completely foreign in the traditional FOIA context (data dictionary, anyone?). Getting agency IT staff looped in from the start on these requests can help bridge that knowledge gap and ensure everyone works together to prepare the data for disclosure as efficiently as possible. This team should also include representatives from the agency’s legal staff, the relevant program office(s) and possibly the Public and/or Legislative Affairs Offices. Teaming up with the agency’s records management staff is also a good practice as a general rule, and especially so when involving electronic records because they can present unique issues that need to be promptly addressed and resolved.

As we start a new year, the time is right to create a new game plan — especially if that new game plan can create efficiencies and reduce costs. We are always looking for best practices, so we would love to hear your suggestions and your experiences with “the team approach” to FOIA.

Records requests pertaining to third-party individuals are the next order of business for the FOIA Requester Roundtable series co-hosted by OGIS and the Department of Justice’s Office of Information Policy. The roundtable will be from 10 a.m. to noon Tuesday January 24 at the National Archives, 7th Street and Constitution Avenue, NW, Washington DC, near the Archives-Navy Memorial Metro stop. The roundtable is open to the public, although pre-registration is required due to limited space. If you’d like to attend, please email your full name and phone number with “Roundtable” in the subject line to OGIS at ogis@nara.gov. Previous roundtables have covered business-related records, law enforcement records and referrals and consultations.  Have suggestions on topics for future roundtables? Email OGIS.

Consider this: a multi-agency FOIA portal that automates FOIA processing and reporting, stores FOIA requests and responses in a repository and keeps records electronically. Not to mention allows requesters to submit requests to fewer government websites, track the status of requests and find, view and download FOIA requests and agency responses, all in a secure online environment.

Sound like a dream? It was. Now it’s becoming reality, thanks to the Environmental Protection Agency (EPA), the Department of Commerce and OGIS’s parent agency, the National Archives and Records Administration (NARA). If all goes as planned, the project goes live this fall. Agency FOIA professionals can get a first look this month.

First, a little history. More than a year ago, EPA began looking at the feasibility of such a portal. The agency administers Regulations.gov, the Federal rulemaking portal that allows people to comment on Federal regs and other agency actions. Why not, the agency thought, retool the regulations.gov infrastructure for handling FOIA requests?

Commerce and NARA, through OGIS, jumped aboard from the start, forming a multi-agency partnership last fall. More recently, the Department of Veterans Affairs has expressed interest in joining.

The cost is about $1.3 million, the bulk of which is being paid by EPA and Commerce; the partnership is seeking more agency participants for the project, which is projected to save as much as $200 million over the next five years based on governmentwide adoption. By leveraging the infrastructure of Regulations.gov, the project avoids start-up costs.

Representatives from the founding partners met earlier this month to have a look at both the agency and requester sides of the portal. The partnership is unveiling the portal to agency FOIA professionals in a series of meetings and webinars on Wednesday January 11, Thursday January 12 and Wednesday January 18.

Senior-level FOIA professionals are invited to see an overview of the portal from 1:30 p.m. to 3 p.m. Wednesday January 11 at EPA, 14^th Street and Constitution Avenue N.W., Washington, D.C.

An in-the-weeds look at the portal will be presented from 10 a.m. to 4 p.m. Thursday January 12 at Commerce, across the street from EPA. Presenters, EPA and its supporting contractors, are seeking feedback from FOIA professionals about what works – and what doesn’t – about the portal before coding and testing are completed this spring.

Finally, a summary of the comments gathered on January 12 will be presented from 1:30 p.m. to 3 p.m. Wednesday January 18 at EPA.

All three presentations also will be available via webinar. Live space is limited, so registration is required. For this round, registration is limited to government employees with public previews to follow as development progresses. To register to attend either via webinar or in person, contact Tim Crawford, EPA’s senior policy adviser on open government.