The FOIA Ombudsman

FOIA professionals do an essential job that keeps our democracy afloat. ARC Identifier 534682)

Those of us in the FOIA and Privacy fields have long desired to “professionalize” the Government information access field. Traditionally, FOIA and Privacy professionals in the Federal government have had no consistent job titles or descriptions and no clear career path; instead, agencies have taken a patchwork approach, squeezing FOIA and Privacy professionals into sometimes unrelated areas. Hardly appropriate treatment for those who uphold the ideals of transparency and democracy!

All of this changed in March 2012 when, as a result of the hard work of some dedicated advocates, the Office of Personnel Management (OPM) created the Government Information Specialist Job Series, 0306. This series includes positions responsible for administering, analyzing, supervising, or performing work involved in establishing, disseminating or managing Government information. Government Information Specialists formulate policy, advise agency management, and ensure compliance with Federal laws governing the flow of information. The work also involves safeguarding Government information while supporting accountability and transparency. In other words, Government Information Specialists do the work that makes FOIA work.

 OPM issued guidance directing agencies to implement this series with a March 9, 2013 deadline. While creating this series is ultimately good news for everyone, it forced agencies to quickly rethink how they categorize FOIA professionals. OPM largely left it up to agencies to decide how to implement the new job series; since each agency is structured a little differently, this allowed agencies to decide what works best for them.

 We at OGIS recognized early on that professionalizing the field is an important step in improving the FOIA process and we were eager to work with anyone who wanted to advance this effort. In the course of our work as the FOIA Ombudsman, we regularly hear from agencies and requesters about FOIA trends and issues. After hearing from many different agencies that there were some issues with the implementation of the job series, OGIS offered to host an inter-agency and external working group (WG). The WG began meeting in October 2012 to explore the duties, specialties and/or titles that should be included under this job series and to share best practices and lessons learned. The WG also is working to educate and collaborate with other agencies and human resource offices about ways to use the job series to professionalize the career and recommend implementation of the series.

The WG is co-chaired by representatives from the Department of Health and Human Services and the Department of Justice’s Office of Information Policy and includes representatives from the Departments of Defense, Homeland Security, and State, as well as the Food and Drug Administration.  The requester community is represented by the American Society of Access Professionals, Citizens for Responsibility and Ethics in Washington, OpentheGovenment.org, Sunshine in Government Initiative, Access Reports, Inc., and several attorneys in private practice.

As of November 2012, there were 27 agencies with a total of 229 professionals in the series. While this is progress, we recognize that there is more to do. The WG is completing a set of core competencies for Government Information Specialists in the areas of analytical skills, communications, organization and team building. We hope that this information can be used by agency human resource professionals to create consistent position descriptions that will attract quality candidates to this new job series.

While the implementation deadline is quickly approaching, the WG anticipates that our work will continue long after March 9, 2013. We hope that we will become a resource to help human resources professionals and the FOIA and Privacy communities collaborate to ensure the success and the best possible implementation of the series.

 As agencies prepare for the deadline, we encourage them to consider the following best practices:

Collaborate. The job series exists as a result of collaboration between people across the government and interested members of the public. FOIA and Privacy professionals must continue to work together with the human resource professionals within their agencies to implement the series. The WG welcomes additional agencies and those in the requester community to continue the conversation. Working together can only help the process.

Communicate. We’ve heard of agencies that are simply changing FOIA professionals’ job titles without discussing those changes and other agencies that haven’t yet begun implementing the series. If this is happening at your agency, speak up! Talk to your FOIA and Privacy managers about your interest in the series and determine the implementation status for your agency. The FOIA and Privacy managers should then communicate to the human resource professionals in your agency to ensure there is an understanding and agreement in place for either hiring or converting those responsible for government information to the new job series.

Outreach. The success of the Government Information Specialist job series depends on how successful we are at communicating the importance of FOIA and the expertise that processing FOIA and Privacy Act requests requires. OGIS and the WG will continue to beat the drum for FOIA and Privacy professionals; if you want to know how you can be involved with the outreach effort, or if you have other ideas or feedback, please contact us.

However you keep your calendar – digital, paper, or buckskin – we hope you join us for our Sunshine Week event. (ARC Identifier 523631)

OGIS will celebrate Sunshine Week along with the National Archives, our parent agency, with two back-to-back events at the National Archives on Monday, March 11, 2013:

• A display of the original FOIA with remarks by Archivist of the United States David Ferriero and OGIS Director Miriam Nisbet
• A demonstration of FOIAonline, the multi-agency FOIA portal that launched October 1, 2012 and is designed to streamline the FOIA process for both agencies and requesters

Join Archivist Ferriero and Director Nisbet in the East Gallery of the National Archives Rotunda at 1 p.m. March 11 to discuss the importance of FOIA, which celebrates its 47^th birthday this year. At 1:45 p.m., in the Washington Conference Room of the National Archives, come see what FOIAonline is all about with a demonstration of the portal, which six agencies, including the National Archives, are using to process FOIA requests.

The National Archives is located at 700 Constitution Ave., N.W., across from the Archives-Navy Memorial-Penn Quarter Metro Station on the Yellow and Green lines. Please RSVP to ogis@nara.gov; those who do not RSVP and wish to come may have to wait in the public line to enter the building.

When friends share their knowledge, good things grow. (ARC Identifier 6423777)

A few of us from OGIS recently attended a presentation by the Interagency Alternative Dispute Resolution Working Group, an organization for Federal employees who work in the area of alternative dispute resolution. The title of the presentation was “How an Ombuds Office Serving Employees, Customers, and Citizens Can Bring Greater Success to Your Agency.”

The presentation featured Rita Franklin, Director of the Department of Energy’s Office of the Ombudsman;  Charles L. Howard, an attorney and author of the book The Organizational Ombudsman: Origins, Roles and Operations — A Legal Guide; and Wendy Kamenshine, Ombudsman at the Consumer Financial Protection Bureau. The speakers shared lots of good information, but a few of their statements particularly resonated with us as the FOIA Ombudsman.

1. An ombuds office plays an essential role, even though many people don’t understand what it does. The statistics for success of those who step forward as whistleblowers are grim, but ombuds offices can help address some of the same issues in an environment of independence, neutrality, confidentiality and informality.
2. Mediation and ombuds work are complementary services. Ombuds work builds ongoing relationships while mediation is an engagement that takes place during a defined period of time, according to one presenter.
3. Ombuds work requires creativity. Ombudsmen have at their disposal a broad toolkit that includes mediation, facilitation, training, outreach, shuttle diplomacy and much more.
4. One great challenge that new ombuds offices may face is overlap with other offices within the organization and feelings of jealousy or territoriality that may arise. One example that was cited is human resources departments feeling territorial about HR issues that might be brought to the ombuds office. The panelists encouraged new ombuds offices to work through these issues by focusing on communicating the way ombuds offices can help and their role within the organization.

It was great to hear how other Federal ombuds offices are dealing with the same challenges and opportunities that we at OGIS have faced. The discussion certainly planted lots of seeds for us — we can’t wait to see what grows out of them!

Treasures like this photograph of an oiled Kemp’s Ridley Turtle are awaiting discovery among the records that NOAA has made available online. This turtle was cleaned and treated by a team of sea turtle experts before he was returned to less treacherous waters. (Credit: Carolyn Cole, L.A. Times)

Editor’s note: This guest post is from Wendy Schumacher, Ph.D., PMP. Wendy, thank you for sharing your story.

I started my job as the FOIA Officer at the National Oceanic and Atmospheric Administration (NOAA) about a year after the April 2010 Deepwater Horizon Oil Spill. My new colleagues had collected, organized, reviewed, redacted and released tens of thousands of pages of records in response to a large number of FOIA requests prior to my arrival. They also identified the importance of making the records they released in response to those FOIA requests available to the widest possible audience. It was a great idea, but the project needed a champion.   So, I took off my FOIA Officer hat and put on the librarian one. After brainstorming with my organization’s webmaster, it didn’t seem feasible to host these large files on our server. We needed to figure out another way to give people access to the great information NOAA could provide.

In addition to potential FOIA requesters already identified, “people” in my mind include my school-teacher sister’s elementary school class. She has always been interested in how her students can see the scientific data that I organize at work. The others who help fuel my passion for information sharing are the science teachers that I met teaching library cataloging and website development in the Peace Corps. I was committed to finding a way to make our resources easy to search.

The thought of these audiences kept me driven to find funding for the project. We did, and a few months later the NOAA FOIA Office collaborated with the NOAA Library to make the Deepwater Horizon Oil Spill records available through the Library’s online catalog. Not only does this mean that potential requesters do not need to file a FOIA request to see what already has been released, but researchers around the world can access the records by using common library catalog systems. This reveals a group of documents that they may not otherwise know exist. The connection is made by using Library of Congress Subject Headings (LCSH) so that a potential requester can click on the LCSH hyperlink on the NOAA website to see what other information may be available through multiple international cataloging services. A link to the NOAA Library Catalog can be found on the NOAA FOIA homepage.

Here is what the LCSH or Subject term links look like after searching for “NOAA FOIA documents”:

By clicking on Sea Turtles–Effects of oils spills on–Mexico, Gulf of. you’ll see that a total of 40 FOIA requests asked for records about Sea Turtles:

In Fiscal Year 2012, over 670,000 individual pdf files were viewed. Although it’s hard to say how many potential requesters got their information immediately instead of having to wait for a response through the FOIA process, I can confirm that NOAA did not receive any requests asking for clarification about what was posted. That meets any FOIA professional’s definition of “satisfied people.”

With a little help from the whole Executive Branch team, we can efficiently process multi-agency requests. (ARC Identifier 5585742)

With 100 departments and agencies, the Executive Branch can feel downright massive sometimes. Although each of the 100 has a separate and distinct mission, and no doubt creates very different kinds of records, there is also some overlap in the way agencies operate and with the records they keep.

Since its start, OGIS has been a resource for the same or similar requests that span more than one agency. While we aren’t here to direct agencies on how to respond to a request — we are, after all, a neutral third party to the FOIA process — we have found benefits for both agencies and requesters by facilitating the exchange of information on these multi-agency requests.

1. The information exchange lets agencies know that others are processing the same request and gives the FOIA professionals the opportunity to discuss any sticky issues they have identified and to share strategies for responding to the request.
2. Agencies may be processing these requests with differing results, so a discussion lets them share that up front so there are no surprises if they aren’t acting in concert.
3. It gives requesters one point of contact — OGIS — rather than dozens of different FOIA professionals at multiple agencies.

As the FOIA Ombudsman, OGIS has worked through a handful of these cases, brought by both agencies and requesters. Here are a couple examples:

• Contractor performance data: a FOIA requester asked for performance scores and narratives for government contractors from more than 40 agencies. Responses varied from full releases to partial withholding to full withholding — to no response at all. The exemptions cited varied as well. OGIS invited any interested agency representatives to join in a discussion in which they shared how they arrived at their results and discussed the potential harm in release. In the end, some additional agencies decided to release some or all of the information while other agencies determined that a different exemption may have been more appropriate. Still others did not change their position at all. In the end, all the agencies were aware of their differing responses.
• Agency travel data: this requester asked for various agency travel records dating back 10 years for more than 60 agencies. OGIS gathered agency contacts who explained that they weren’t sure exactly what the requester was seeking, and they weren’t sure how to retrieve the data since most agencies work through contractors to maintain their massive travel databases. OGIS worked with the requester to come up with a targeted list of fields he was seeking and provided it to interested agencies. OGIS also worked with agencies on strategies to collect the data from their vendors. Agencies shared their methods with one another and dozens of agencies were able to provide the records.

OGIS has begun hearing from requesters before they file multi-agency requests to give us a heads up that they’re coming. In other cases, it’s an agency getting in touch to say it has heard that other agencies have the same request. Sometimes it makes sense to get agencies together to discuss; other times, there are no real issues to work through — yet. But it’s good to get everyone looped in nonetheless.

One of OGIS’s April 2012 Recommendations to Improve FOIA was to increase awareness about OGIS’s role for these types of requests. The recommendation addresses the value in coordinating efforts for these requests. The office stands ready to continue assisting in these cases, so please be in touch if you think this situation might apply to you.

Radio host Kojo Nnamdi is known for his easy, conversational style and incisive questions. Recently he invited OGIS Director Miriam Nisbet by for a chat (photo by Stephen Voss).

OGIS Director Miriam Nisbet appeared on WAMU radio’s award-winning Kojo Nnamdi show on January 29, 2013, for a discussion titled “Following Through on FOIA: Progress and Pitfalls.” Daniel Metcalfe, Executive Director of the Collaboration on Government Secrecy at American University’s Washington College of Law and Thomas Blanton, Director of the National Security Archive at George Washington University also appeared on the show, along with reporter Michael Pope. The group discussed the challenges faced by federal FOIA processors and offered practical advice for requesters and agencies.

If you missed the show, you can listen to the entertaining and informative discussion online.

While you won’t find any card catalogs in agency FOIA libraries, the same principles of good librarianship — creating a resource that is helpful, useful and organized — apply. (ARC Identifier 558218)

On January 21, 2013, representatives of 12 agencies and several requester groups gathered to discuss online FOIA “libraries.” The Attorney General’s 2009 FOIA Memorandum encouraged agencies to post information online in advance of a formal request. Many agencies’ FOIA regulations also require them to post records for which they receive multiple requests, and other agencies such as the FBI wisely post records related to hot topics for which they expect multiple requests. Additionally, the Freedom of Information Act itself, 5 USC § 552(a)(2), lists categories of records that agencies should make available on their websites.

While creating a FOIA library seems straightforward, Tuesday’s lively, wide-ranging discussion revealed both challenges and opportunities for agencies.

1. Agencies are feeling the squeeze. We’ve talked before about the difficult budget environment affecting FOIA offices dealing with backlogs. This is also true as agencies try to expand their FOIA libraries. Given the choice of dedicating already-limited FOIA staff to processing requests or uploading and organizing documents, roundtable attendees agreed that most agencies would choose the former. Compounding the issue is that FOIA professionals may not be technology experts and may face hurdles within their agencies to access the tools and know-how they need. While there may be no easy answer to this challenge, it’s important to continue discussing it so all members of the FOIA community — agencies and requesters — understand agencies’ limitations. 
2. Save the time of the reader. We heard again and again that agencies face a major challenge as they attempt to implement S. R. Ranganathan’s Fourth Law of Library Science. Several roundtable attendees reported that they found some agency FOIA libraries to be inconsistent and disorganized. While making web resources accessible is a challenge faced by all content providers, the roundtable attendees expressed a desire for Federal FOIA leadership to develop best practices for FOIA libraries.  
3. Beyond records. So what, exactly, should FOIA libraries contain? While FOIA libraries are an ideal place to make records available, those in attendance encouraged agencies to also include information about how they process FOIA requests. Ideally, this information would be in the form of FOIA regulations and policies as well as a plain language guide to making a FOIA request. Other attendees encouraged agencies to post information about what their agencies don’t have — for instance, the Department of Education does not have access to local schools’ records.
4. Great FOIA libraries require a culture shift. While the attendees agreed that agency FOIA professionals tend to be strongly pro-disclosure, this is not always true for the agencies in which they work. Creating a useful FOIA library requires an agency to think like a requester in terms of what to include and how to organize it. Roundtable attendees reminded one another that although agencies generally agree that after three requests for a record, that record should be posted in the FOIA library, agencies don’t need to wait for even one request to post a record. Attendees also agreed that the FOIA library works best as a team effort, involving an agency’s Public Affairs, IT, records management and FOIA staffs as well as its leadership.

 Do you have thoughts on FOIA libraries? We’d love to hear from you!  

Making FOIA libraries as useful as possible for requesters is the topic of the January 22 FOIA Requester Roundtable (ARC Identifier 541514)

Did you know that agencies are required under the Freedom of Information Act (FOIA), 5 USC § 552(a)(2), to make available to the public five categories of records:

• final opinions, including concurring and dissenting opinions and orders, made in adjudicated cases;
• policy statements not published in the Federal Register;
• administrative staff manuals and instructions that affect the public;
• previously released records that are likely to become the subject of future requests and an index of such records; and
• a record of the final votes of each member in every agency proceeding?

Agencies generally make these documents available in their web-based FOIA reading rooms or libraries, which are the subject of the Tuesday January 22 FOIA Requester Roundtable, a quarterly meeting with requesters sponsored by OGIS and the Office of Information Policy (OIP), the government’s FOIA policy office.

“FOIA Libraries: Maximizing Usefulness from the Requester Standpoint,” will be from 10 a.m. to 12:30 p.m. on January 22 at OIP, 1425 New York Ave. NW, near the McPherson Square Metro stop on the Blue & Orange lines and Metro Center on the Red line.

Interested? E-mail your name and phone number to OIP Training Officer Bertina Adams (doj.oip.foia@usdoj.gov). Registration is required and a picture ID is required to enter the building. If you can’t make it in person, call-in information will be provided upon registration. Questions? Call Ms. Adams at 202-514-1010. We hope to see you there!

Some agencies have found ways to get more bang for their buck when dealing with FOIA backlogs. (ARC Identifier 195893)

There’s a great deal of pressure on agencies to reduce the number of FOIA requests in their backlogs. The FOIA community talks a lot about backlogs, but mostly in numbers, not in terms of how some agencies have succeeded in reducing the number of cases awaiting response. Considering the budget environment in which all agencies are operating, it’s worth exploring how some agencies have been able to tackle their backlogs.

I moderated a panel at December’s American Society of Access Professionals (ASAP) Training Conference titled “Growing Backlogs, Shrinking Budgets: New Ideas about FOIA Backlogs.” Don McIlwain of the National Archives and Records Administration’s National Declassification Center, William Holzerland of the Department of Health and Human Services’ Food and Drug Administration, and FOIA Attorney Scott Hodes joined me to share their experiences. Here are some of the broad themes that emerged from that discussion. 

1. Communicate with requesters. The panelists agreed that this is the key to successfully closing requests in an agency’s backlog. More than one panelist shared a story of working with requesters to narrow the scope of requests, making them easier to process. However, not all communication is the same; rather than waiting months (or even years) and then sending a “still interested” letter, the panelists reported that their most successful communications with requesters were substantive, ongoing, and led to improved rapport. This investment of time can lead to enormous dividends in the form of a dwindling backlog.
2. Executive interest in FOIA sets the right tone. When senior agency leaders focus on FOIA, things tend to get done. The panelists reported that in their experience at multiple agencies, they experienced the greatest success in backlog reduction where senior leaders saw it as a priority and made sure that FOIA staff had the training they needed to get the job done.
3. Technology can help you rethink what is possible. Technology can help, but not in the way you might expect. None of the panelists described an experience in which his agency implemented an expensive new system that was a silver bullet for its backlog. But more than one of the panelists described using existing technology in new ways to process requests more efficiently. One notable example is an agency that used to refer documents by copying and mailing paper records that now scans the records and refers digital copies which are processed electronically once the originating agency responds. No need to reinvent the wheel!
4. We are all on Team FOIA. We at OGIS love the team approach, and our panelists do, too. One panelist described his role as that of a “FOIA evangelist,” helping those in non-FOIA program offices think like FOIA folks. FOIA is the responsibility of every government employee, and agencies that have been able to communicate this message have succeeded in reducing their backlogs.

Do you have a best practice for reducing backlogs that we didn’t capture? We’d love to hear from you!  

We are sorry to lose one of our own, but we know she is off to fight the good fight. (ARC Identifier 542171)

This post is from OGIS Deputy Director Karen Finnegan.

“The only thing that stays the same is change.”  Melissa Etheridge

At OGIS, we specialize in change. The very existence of OGIS represents an innovative change to the FOIA administrative process. Our daily work involves changing the way people approach conflict and how they communicate with others. However, the time has come for OGIS itself to change: I’m leaving OGIS to work at the U.S. Department of State.

The last three years have been life changing for me! I’ve have the honor of being part of an extraordinary team of professionals who collaborated to lay the foundation for a novel way of making FOIA work better for all parties. Although I’ve learned much about good government, good communication and myself during my tenure in OGIS, two experiences really stand out in my mind.

First, my OGIS experience has shown me how collaboration is truly an efficient and cost-effective way to make good decisions. It allows everyone to have a voice and provides a safe environment for thinking outside the box. And sometimes merely inviting a party to the table helps to avoid and/or resolve a dispute because it shows an interest in hearing that person’s point of view.

Second, I’ve also seen how having that difficult conversation works wonders in building rapport and gaining understanding. Our professional and personal lives thrive when we are skilled at building and maintaining relationships. One of the best ways to do this is by communicating in a way that is open and curious. When we approach a conversation in an open and curious way, we are laying the groundwork for an even exchange of ideas and concerns.

I’m grateful for the personal and professional growth I’ve experienced as part of the OGIS team. I also appreciate having worked for the National Archives, which, as the government’s record keeper, is essential to our democracy. The Archives is a great example of good government because the entire organization is focused on providing excellent customer service and ensuring that our history is not only preserved, but also accessible. The Archives’ slogan—Records Matter!—reflects the notion that access to government records is the backbone of open government.

I leave OGIS with a tool kit brimming over with innovative ideas and approaches, which I know will serve me well in my new position. As I move on, I’ll keep in mind that good government is about sharing information and working together for a common goal; that good communication is essential to avoiding conflicts and building rapport; and that collaboration is the best way to give people a voice and results in better decisions. In other words, I’m not leaving the OGIS methods behind, just carrying them with me to a new venue.

I’ll miss my OGIS and Archives colleagues, and will always cherish my time among some of the most impressive and dedicated people in government service.