Due to the Federal government shutdown, the Office of Government Information Services and the National Archives are closed. We are unable to post to the FOIA Ombudsman during this closure. All National Archives facilities are closed, with the exception of the Federal Records Centers and the Federal Register until the Federal government reopens.
We hope to see you soon.
We’ve made no secret of how proud we are of all that OGIS has accomplished in its four years. We have assisted hundreds of FOIA requesters and dozens of agencies by resolving FOIA disputes that might otherwise have gone to court. We have worked with agencies to better fulfill their responsibility to provide good customer service to FOIA requesters. Above all, we have put Congress’s novel idea – to apply Alternative Dispute Resolution techniques to the highly adversarial FOIA process – into action.
While we know that OGIS is providing a valuable (and valued) service, we know that we some work to do to fully implement our mandate; we discussed this in our 2013 Report. A recent audit of OGIS by the General Accountability Office (GAO) pointed to some of these same lessons we have learned in the last four years:
- It is challenging to define “success” in providing mediation services. Litigation results in a clear winner (and loser). But considering that the goal of our process is compromise, how can we best identify a successful mediation?
- OGIS’s mandate is broad. Like every part of the government today, we must do more with less. This means that we have had to make difficult choices about how to best use our limited resources.
- The demand for OGIS’s services is great. Our caseload is very large (especially considering that we have only seven staff members) and it continues to grow. This presents an additional challenge as we work to implement our mandate more fully.
In response to GAO’s findings, we are creating an action plan to respond to the challenges identified in the report. We look forward to sharing our plans with you in the coming weeks.
In his November 28, 2011 Presidential Memorandum -Managing Government Records, President Obama noted “proper records management is the backbone of open Government.” Sound records management helps agencies carry out their missions, promotes accountability by documenting agency activities, and fosters open Government. As we’ve written before, good records management is essential for good FOIA programs. That’s a message that Archivist of the United States David Ferriero brought to Capitol Hill on September 10, 2013.
To address the challenges of managing electronic records and rapid changes in technology, OGIS’s parent agency, the National Archives and Records Administration (NARA), recently issued guidance for Federal agencies on managing email electronically, managing email accounts, and protecting Federal Records from unauthorized removal.
NARA Bulletin 2013-02: Guidance on a New Approach to Managing Email Records presents “Capstone,” a simplified and automated approach for electronically managing Federal email records. The bulletin offers considerations that agencies should review if they choose to implement the Capstone approach to manage their email records. The Capstone approach, one of several available to agencies, supports the Presidential Memorandum on Managing Government Records and allows agencies to comply with the requirement in OMB/NARA M-12-18 Managing Government Records Directive to “manage both permanent and temporary email records in an accessible electronic format” by December 31, 2016.
NARA Bulletin 2013-03: Guidance for Agency Employees on the Management of Federal Records, Including Email Accounts, and the Protection of Federal Records from Unauthorized Removal reaffirms that agencies and agency employees must manage Federal records appropriately and protect them from unauthorized removal from agency custody. In addition, the bulletin clarifies records management responsibilities regarding the use of personal email accounts for official business and the use of more than one Federal email account. (NARA Bulletin 2013-03 replaces and updates NARA Bulletin 2008-02.)
Ferriero testified before the House Oversight and Government Reform Committee on the topic of Preventing Violations of Federal Transparency Laws. Ferriero clarified NARA’s policy on the use of private or unofficial email accounts to conduct Federal business. “The National Archives discourages the use of private email accounts to conduct Federal business, but understands that there are situations where such use does occur,” he said. “Accordingly, where a private email account must be used to conduct government business – because, for example, the government-provided email service is not available for technical reasons – the Federal records generated through these private accounts must be moved to the official recordkeeping system of the agency as soon as practicable, and then managed according to the Federal Records Act, the Freedom of Information Act, and other legal requirements and their implementing regulations.”
As the government strives to find ways to improve FOIA, proactive disclosure seems to be one strategy that everyone agrees on; if agencies make more information publicly available, people will not need to make FOIA requests for those records.
In many cases, this strategy has worked. Thanks to efforts like data.gov and agencies’ FOIA libraries, you can now easily download reams of information that were previously available only through a FOIA request. But what about those for whom the Internet itself is out of reach?
We have heard from a handful of FOIA requesters who have made FOIA requests for records only to be told by the agency that because the records are available on the web, the agency is not required to provide them through FOIA. Unfortunately, even in our connected age, there are individuals who do not have access to the Internet (or access to a public library’s Internet terminals). So how should agencies handle requests from those who are housebound, or incarcerated, or in some other situation that presents them from accessing records that are “freely available” to others?
It is worth noting that agencies have very good reasons for refusing to supply customers with copies of publicly available records, particularly to those who can access the records online. It is costly in terms of time, money and effort. It can also feel like a slippery slope; no agency wants to earn a reputation as a printing press.
We have heard from agencies whose regulations stipulate that they will not fulfill requests for publicly available records. We know that other agencies send copies of records available on the Internet without a second thought when requested by an individual who explains his or her situation. It is interesting to consider the issue in light of the Administration’s emphasis on good customer service.
Agencies, have you received requests like these? How do you handle them? We’d love to hear from you.